**Exhibit 10.2**

 

EXHIBIT A

 

 

FIVE-YEAR COMPETITIVEADVANCE AND

REVOLVING CREDIT FACILITYAGREEMENT

 

 

dated as of October 19,2005,

 

as amended and restated asof June 1, 2007,

 

as further amended andrestated as of June 12, 2009,

 

among

 

 

JANUS CAPITAL GROUP INC.,

 

 

THE LENDERS PARTY HERETO,

 

 

CITIBANK, N.A.,

as Agent,

 

 

and

 

 

JPMORGAN CHASE BANK, N.A.,

as Syndication Agent

 

----

 

 

CITIGROUP GLOBAL MARKETSINC.

 

 

and

 

 

J.P. MORGAN SECURITIES INC.,

 

Co-Arrangers and Co-Book Managers

 

[CS&M C/M 06558-634]

 

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TABLEOF CONTENTS

 
| ** **                     | ** **                                                            | **Page** |
|--------------------------------|-----------------------------------------------------------------------|----------|
|                           |
| ARTICLE I                      |
|                           |
| DEFINITIONS                    |
|                           |
| SECTION  1.01.                 | Defined  Terms                                                        | 1        |
| SECTION  1.02.                 | Terms  Generally                                                      | 29       |
| SECTION  1.03.                 | Accounting  Terms                                                     | 30       |
|                           |
| ARTICLE II                     |
|                           |
| THE CREDITS                    |
|                           |
| SECTION  2.01.                 | Commitments                                                           | 31       |
| SECTION  2.02.                 | Loans                                                                 | 31       |
| SECTION  2.03.                 | Competitive  Bid Procedure                                            | 32       |
| SECTION  2.04.                 | Standby  Borrowing Procedure                                          | 34       |
| SECTION  2.05.                 | Standby  Interest Elections                                           | 35       |
| SECTION  2.06.                 | Fees                                                                  | 36       |
| SECTION  2.07.                 | Repayment  of Loans; Evidence of Debt                                 | 37       |
| SECTION  2.08.                 | Interest  on Loans                                                    | 37       |
| SECTION  2.09.                 | Default  Interest                                                     | 38       |
| SECTION  2.10.                 | Alternate  Rate of Interest                                           | 38       |
| SECTION  2.11.                 | Termination  and Reduction of Commitments                             | 39       |
| SECTION  2.12.                 | Prepayment                                                            | 39       |
| SECTION  2.13.                 | Reserve  Requirements; Change in Circumstances                        | 41       |
| SECTION  2.14.                 | Change  in Legality                                                   | 42       |
| SECTION  2.15.                 | Indemnity                                                             | 43       |
| SECTION  2.16.                 | Pro  Rata Treatment                                                   | 43       |
| SECTION  2.17.                 | Sharing  of Setoffs                                                   | 44       |
| SECTION  2.18.                 | Payments                                                              | 44       |
| SECTION  2.19.                 | Taxes                                                                 | 45       |
| SECTION  2.20.                 | Termination  or Assignment of Commitments under Certain Circumstances | 48       |
| SECTION  2.21.                 | Lending  Offices and Lender Certificates; Survival of Indemnity       | 48       |
|                           |                                                                  |     |
| ARTICLE III                    |
|                           |
| REPRESENTATIONS AND WARRANTIES |                                                                  |
|                           |                                                                  |
| SECTION  3.01.                 | Corporate  Existence and Standing                                     | 49       |
| SECTION  3.02.                 | Authorization  and Validity                                           | 49       |
| SECTION  3.03.                 | No  Conflict; Governmental Consent                                    | 49       |
| SECTION 3.04.                  | Compliance with Laws;  Environmental and Safety Matters               | 50       |

 

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| SECTION  3.05.        | Financial  Statements                                                                         | 50     |
|-----------------------|-----------------------------------------------------------------------------------------------|--------|
| SECTION  3.06.        | No  Material Adverse Change                                                                   | 50     |
| SECTION  3.07.        | Subsidiaries                                                                                  | 51     |
| SECTION  3.08.        | Litigation                                                                                    | 51     |
| SECTION  3.09.        | Material  Agreements                                                                          | 51     |
| SECTION  3.10.        | Regulation  U                                                                                 | 51     |
| SECTION  3.11.        | Investment  Company Act                                                                       | 51     |
| SECTION  3.12.        | Use  of Proceeds                                                                              | 51     |
| SECTION  3.13.        | Taxes                                                                                         | 51     |
| SECTION  3.14.        | Accuracy  of Information                                                                      | 51     |
| SECTION  3.15.        | No  Undisclosed Dividend Restrictions                                                         | 52     |
| SECTION  3.16.        | Properties                                                                                    | 52     |
| SECTION  3.17.        | Collateral  Matters                                                                           | 52     |
|                  |                                                                                          |   |
| ARTICLE IV            |
|                  |                                                                                          |   |
| CONDITIONS            |
|                  |                                                                                          |   |
| SECTION  4.01.        | Restatement  Effective Date                                                                   | 53     |
| SECTION  4.02.        | All  Borrowings                                                                               | 53     |
|                  |                                                                                          |   |
| ARTICLE V             |
|                  |
| AFFIRMATIVE COVENANTS |
|                  |
| SECTION  5.01.        | Conduct  of Business; Maintenance of Ownership of Subsidiaries and Maintenance of  Properties | 54     |
| SECTION  5.02.        | Insurance                                                                                     | 55     |
| SECTION  5.03.        | Compliance  with Laws and Payment of Material Obligations and Taxes                           | 55     |
| SECTION  5.04.        | Financial  Statements, Reports, etc                                                           | 56     |
| SECTION  5.05.        | Notices  of Material Events                                                                   | 58     |
| SECTION  5.06.        | Books  and Records; Access to Properties and Inspections                                      | 58     |
| SECTION  5.07.        | Use  of Proceeds                                                                              | 59     |
| SECTION  5.08.        | Information  Regarding Collateral; Deposit Accounts; Securities Accounts                      | 59     |
| SECTION  5.09.        | Additional  Subsidiaries                                                                      | 60     |
| SECTION  5.10.        | Further  Assurances                                                                           | 60     |
|                  |                                                                                          |   |
| ARTICLE VI            |
|                  |
| NEGATIVE COVENANTS    |
|                  |
| SECTION  6.01.        | Indebtedness  of Subsidiaries                                                                 | 60     |
| SECTION  6.02.        | Liens                                                                                         | 62     |
| SECTION  6.03.        | Sale  and Lease-Back Transactions                                                             | 63     |
| SECTION  6.04.        | Mergers,  Consolidations and Transfers of Assets                                              | 64     |
| SECTION 6.05.         | Transactions with  Affiliates                                                                 | 65     |

 

ii

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| SECTION  6.06.    | Restrictive  Agreements; Certain Other Agreements                   | 65 |
|-------------------|---------------------------------------------------------------------|----|
| SECTION  6.07.    | Certain  Financial Covenants                                        | 66 |
| SECTION  6.08.    | Margin  Stock                                                       | 66 |
| SECTION  6.09.    | Investments,  Loans, Advances, Guarantees and Capital Contributions | 66 |
| SECTION  6.10.    | Restricted  Payments; Certain Payments of Indebtedness              | 69 |
| SECTION  6.11.    | Limitations  on Conduct of Business                                 | 71 |
| SECTION  6.12.    | Concerning  Janus Capital International Limited                     | 71 |
|              |
| ARTICLE VII       |
|              |
| EVENTS OF DEFAULT |
|              |
| ARTICLE VIII      |
|              |
| THE AGENT         |
|              |
| ARTICLE IX        |
|              |
| MISCELLANEOUS     |
|              |
| SECTION  9.01.    | Notices                                                             | 78 |
| SECTION  9.02.    | Survival  of Agreement                                              | 79 |
| SECTION  9.03.    | Effectiveness                                                       | 79 |
| SECTION  9.04.    | Successors  and Assigns                                             | 79 |
| SECTION  9.05.    | Expenses;  Indemnity                                                | 82 |
| SECTION  9.06.    | Right  of Setoff                                                    | 83 |
| SECTION  9.07.    | Applicable  Law                                                     | 83 |
| SECTION  9.08.    | Waivers;  Amendment                                                 | 84 |
| SECTION  9.08A.   | Certain  Amendments                                                 | 84 |
| SECTION  9.09.    | Interest  Rate Limitation                                           | 85 |
| SECTION  9.10.    | Entire  Agreement                                                   | 85 |
| SECTION  9.11.    | WAIVER  OF JURY TRIAL                                               | 85 |
| SECTION  9.12.    | Severability                                                        | 86 |
| SECTION  9.13.    | Counterparts                                                        | 86 |
| SECTION  9.14.    | Headings                                                            | 86 |
| SECTION  9.15.    | Jurisdiction;  Consent to Service of Process                        | 86 |
| SECTION  9.16.    | Confidentiality;  Material Non-Public Information                   | 87 |
| SECTION  9.17.    | Electronic  Communications                                          | 88 |
| SECTION  9.18.    | Patriot  Act                                                        | 89 |
| SECTION  9.19.    | No  Fiduciary Relationship                                          | 89 |
| SECTION 9.20.     | Release of Liens and  Guarantees                                    | 89 |

 

iii

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| Schedule  2.01 | Commitments            |   |
|----------------|------------------------|--------|
| Schedule  3.07 | Subsidiaries           |   |
| Schedule  3.08 | Litigation             |   |
| Schedule  6.01 | Existing  Indebtedness |   |
| Schedule  6.02 | Liens                  |   |
| Schedule  6.09 | Investments            |   |

 
| Exhibit  A-1 | Form  of Competitive Bid Request                           |   |
|--------------|------------------------------------------------------------|--------|
| Exhibit  A-2 | Form  of Notice of Competitive Bid Request                 |   |
| Exhibit  A-3 | Form  of Competitive Bid                                   |   |
| Exhibit  A-4 | Form  of Competitive Bid Accept/Reject Letter              |   |
| Exhibit  A-5 | Form  of Standby Borrowing Request                         |   |
| Exhibit  B   | Form  of Assignment and Assumption                         |   |
| Exhibit  C   | Form  of Compliance Certificate                            |   |
| Exhibit  D   | Form  of Guarantee and Collateral Agreement                |   |
| Exhibit  E   | Form  of Global Intercompany Note                          |   |
| Exhibit F    | Form of Intercompany  Indebtedness Subordination Agreement |   |

 

iv

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FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDITFACILITY AGREEMENT dated as of October 19, 2005, as amended and restated as of June1, 2007, as further amended and restated as of June 12, 2009 (as it may beamended, supplemented or otherwise modified from time to time, this “Agreement”),among JANUS CAPITAL GROUP INC., a Delaware corporation (the “Borrower”);the LENDERS party hereto; CITIBANK, N.A., as the Agent; and JPMORGAN CHASEBANK, N.A., as the Syndication Agent.

 

On October 19, 2005, theBorrower, certain lenders party thereto, Citibank, N.A., as administrativeagent and swingline lender, and JPMorgan Chase Bank, N.A., as syndicationagent, entered into a credit agreement, which credit agreement was amended andrestated as of June 1, 2007 (as so amended and restated, the “ExistingCredit Agreement”), pursuant to which the lenders party thereto agreed toextend credit to the Borrower.

 

The Borrower has requestedthat the Lenders amend and restate the Existing Credit Agreement to be in theform hereof, subject to the terms and conditions set forth herein and in theAmendment Agreement dated as of June 12, 2009, among the Borrower, the Lendersparty thereto and the Agent (the “Amendment Agreement”).

 

Accordingly, as of theRestatement Effective Date, the Existing Credit Agreement is amended andrestated to be in the form hereof.

 

# ARTICLE I

#  

# DEFINITIONS

#  

## SECTION 1.01.  Defined Terms.  As used in this Agreement, the followingterms shall have the meanings specified below:

##  

“ABR Borrowing” shallmean a Borrowing comprised of ABR Loans.

 

“ABR Loan” shall meanany Standby Loan bearing interest at a rate determined by reference to theAlternate Base Rate in accordance with Article II.

 

“Adjusted LIBO Rate”shall mean, with respect to any Eurodollar Borrowing for any Interest Period,an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of1%) equal to the product of (a) the LIBO Rate in effect for such InterestPeriod and (b) Statutory Reserves.

 

“AdministrativeQuestionnaire” shall mean an Administrative Questionnaire in a formsupplied by the Agent.

 

“Affiliate” shall mean,when used with respect to a specified Person, another Person that directly, orindirectly through one or more intermediaries, Controls or

 

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is Controlled by or is undercommon Control with the Person specified and, in any case, shall include, whenused with respect to the Borrower or any Subsidiary, any joint venture in whichthe Borrower or such Subsidiary holds Equity Interests of any classrepresenting 15% or more of the issued and outstanding Equity Interests of suchclass.

 

“Agent” shall meanCitibank, N.A., in its capacity as administrative and collateral agent underthe Loan Documents, and its successors in such capacity as provided in Article VIII.

 

“Agent’s Fees” shallhave the meaning assigned to such term in Section 2.06(b).

 

“Agreement” shallhave the meaning assigned to such term in the preamble hereto.

 

“Alternate Base Rate”shall mean, for any day, a rate per annum (rounded upwards, if necessary, tothe next 1/16 of 1.00%) equal to the greatest of (a) the Prime Rate in effecton such day, (b) the Federal Funds Effective Rate in effect on such day plus1/2 of 1.00%, and (c) the Adjusted LIBO Rate on such day (or if such day is nota Business Day, the immediately preceding Business Day) for a deposit indollars with a maturity of one month, plus 1.00%.  For purposes of clause (c) above, theAdjusted LIBO Rate on any day shall be based on the rate per annum appearing onthe Reuters “LIBOR01” screen (or on any successor or substitute screen of suchservice, or any successor to or substitute for such service, providing ratequotations comparable to those currently provided on such screen of suchservice, as determined by the Agent from time to time for purposes of providingquotations of interest rates applicable to dollar deposits in the London interbankmarket) at approximately 11:00 a.m., London time, two Business Days prior tosuch day for deposits in dollars with a maturity of one month.  If for any reason the Agent shall havedetermined (which determination shall be conclusive absent manifest error) that(i) it is unable to ascertain the Federal Funds Effective Rate for any reason,including the inability or failure of the Agent to obtain sufficient quotationsin accordance with the definition of such term, Alternate Base Rate shall bedetermined without regard to clause (b) above until the circumstances givingrise to such inability no longer exist, or (ii) reasonable means do not existfor ascertaining the Adjusted LIBO Rate (determined as set forth above), theAlternate Base Rate shall be determined without regard to clause (c) aboveuntil such reasonable means again exist. Any change in the Alternate Base Rate due to a change in the Prime Rate,the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effectivefrom and including the effective date of such change in the Prime Rate, theFederal Funds Effective Rate or the Adjusted LIBO Rate, as the case may be.

 

“Amendment Agreement”shall have the meaning set forth in the recitals to this Agreement.

 

“Applicable Percentage”shall mean, with respect to any sale, transfer or other disposition of EquityInterests of INTECH or Perkins pursuant to Section 6.04(c)(iv), the quotient,expressed as a percentage, obtained by dividing (a) the excess, if 

 

2

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any, of (i) the lesser of (A)Consolidated EBITDA for the period of four consecutive fiscal quarters of theBorrower ended on or most recently prior to the Restatement Effective Date or (B)Consolidated EBITDA for the period of four consecutive fiscal quarters of theBorrower ended on or most recently prior to the date such sale, transfer orother disposition is consummated (such lesser Consolidated EBITDA beingreferred to as the “Reference Consolidated EBITDA”) over (ii) theReference Consolidated EBITDA re-calculated on a pro forma basis as if suchsale, transfer or other disposition had occurred on the first day of the periodcovered thereby (the “Pro Forma Reference Consolidated EBITDA”), allcalculated in good faith by a Financial Officer of the Borrower in accordancewith Article 11 of Regulation S-X under the Securities Act of 1933, by (b) theReference Consolidated EBITDA; provided that if the ReferenceConsolidated EBITDA shall be less than the Pro Forma Reference ConsolidatedEBITDA, the Applicable Percentage shall be deemed to be zero.

 

“Applicable Rate”shall mean, for any day on or after the Restatement Effective Date, withrespect to any ABR Loan, any Eurodollar Standby Loan or the Commitment Feespayable hereunder, the applicable rate per annum set forth below under thecaption “ABR Spread”, “Eurodollar Standby Spread” or “Commitment Fee Rate”, asthe case may be, based upon the ratings by Moody’s and S&P, respectively,applicable on such day to the Index Debt and the Leverage Ratio as of the endof the most recent fiscal quarter of the Borrower for which consolidatedfinancial statements have been delivered pursuant to Section 5.04(a) or5.04(b); provided that until the date of the delivery of theconsolidated financial statements of the Borrower pursuant to Section 5.04(b) forthe fiscal quarter ended June 30, 2009, the Applicable Rate shall be based onthe rates per annum set forth in Category 2:

 
| **Index  Debt Ratings/  Leverage Ratio**                                                           | ** ** | **ABR Spread** | ** ** | **Eurodollar  Standby Spread** | ** ** | **Commitment  Fee Rate** | ** ** |
|----------------------------------------------------------------------------------------------------|------------|----------------|------------|--------------------------------|------------|--------------------------|------------|
|                                                                                               |       |           |       |                           |       |                     |       |
| Category 1

 

BBB/Baa2 or higher

 

Less than 3.50:1.00                                |       | 2.250          | %          | 3.250                          | %          | 0.250                    | %          |
|                                                                                               |       |           |       |                           |       |                     |       |
| Category 2

 

BBB-/Baa3

 

Greater than or equal to 3.50:1.00 and less than  4.50:1.00 |       | 2.750          | %          | 3.750                          | %          | 0.500                    | %          |
|                                                                                               |       |           |       |                           |       |                     |       |
| Category 3

 

BB+/Ba1

 

Greater than or equal to 4.50:1.00 and less than  6.00:1.00   |       | 3.500          | %          | 4.500                          | %          | 0.625                    | %          |
|                                                                                               |       |           |       |                           |       |                     |       |
| Category 4

 

BB/Ba2

 

Greater than or equal to 6.00:1.00 and less than  7.00:1.00    |       | 4.500          | %          | 5.500                          | %          | 0.750                    | %          |

 

3

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| **Index  Debt Ratings/  Leverage Ratio**                                                     | ** ** | **ABR Spread** | ** ** | **Eurodollar  Standby Spread** | ** ** | **Commitment  Fee Rate** | ** ** |
|----------------------------------------------------------------------------------------------|------------|----------------|------------|--------------------------------|------------|--------------------------|------------|
|                                                                                         |       |           |       |                           |       |                     |       |
| Category 5

 

Lower than BB/Ba2 or unrated

 

Greater than or equal to 7.00:1.00 |       | 5.000          | %          | 6.000                          | %          | 0.750                    | %          |

 

For purposes of theforegoing, (a) the applicable Category shall be based upon the lower of (i) theCategory indicated by the ratings of the Index Debt and (ii) the Categoryindicated by the Leverage Ratio (with Category 1 being considered the “highest”Category); (b) if either Moody’s or S&P shall not have in effect a ratingfor the Index Debt, then the Applicable Rate shall be determined by referenceto the rating of the other rating agency; (c) if neither Moody’s nor S&Pshall have in effect a rating for the Index Debt, then the Applicable Rateshall be determined solely by reference to the Leverage Ratio; (d) if theratings established or deemed to have been established by Moody’s and S&Pfor the Index Debt shall fall within different Categories, the Applicable Rateshall be determined by reference to the higher of the two ratings unless one ofthe two ratings is two or more Categories above the other, in which case theApplicable Rate shall be determined by reference to the Category one levelabove the Category corresponding to the lower rating; (e) if the ratingsestablished or deemed to have been established by Moody’s and S&P for theIndex Debt shall be changed (other than as a result of a change in the ratingsystem of Moody’s or S&P), such change shall be effective as of the date onwhich it is first announced by the applicable rating agency, irrespective ofwhen notice of such change shall have been furnished by the Borrower to theAgent and the Lenders; and (f) each change in the Leverage Ratio shall be giveneffect commencing on and including the first Business Day following the date ofdelivery to the Agent of the consolidated financial statements as of the end ofand for the applicable fiscal quarter and ending on the date immediatelypreceding the effective date of the next such change; provided that theApplicable Rate shall be determined by reference to Category 5 if the Borrowerfails to deliver the consolidated financial statements required to be deliveredby it pursuant to Section 5.04(a) or 5.04(b), during the period from the lastday on which such statements are permitted to be delivered in accordance with Section5.04(a) or 5.04(b), as the case may be, until such consolidated financialstatements are delivered.  Each change inthe Applicable Rate shall apply during the period commencing on the effectivedate of such change and ending on the date immediately preceding the effectivedate of the next such change.  If therating system of Moody’s or S&P shall change, the Borrower and the Lendersshall negotiate in good faith to amend this definition to reflect such changedrating system and, pending the effectiveness of any such amendment, theApplicable Rate shall be determined by reference to the rating of the otherrating agency (or, if the circumstances referred to in this sentence shallaffect both rating agencies, solely by reference to the Leverage Ratio).

 

“Arrangers” shallmean Citigroup Global Markets Inc. and J.P. Morgan Securities Inc.

 

4

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“Assignment andAssumption” shall mean an assignment and assumption entered into by aLender and an Eligible Assignee, with the consent of any Person whose consentis required by Section 9.04, in the form of Exhibit B or any other formapproved by the Agent.

 

“Attributable Debt”shall mean, at any date, in respect of any lease entered into by the Borroweror any Subsidiary as part of a Sale and Leaseback Transaction, (a) ifobligations under such lease are Capitalized Lease Obligations, the capitalizedamount thereof that would appear on a balance sheet of the Borrower or suchSubsidiary prepared as of such date in accordance with GAAP, and (b) ifobligations under such lease are not Capitalized Lease Obligations, thecapitalized amount of the remaining lease payments under such lease that wouldappear on a balance sheet of the Borrower or such Subsidiary prepared as ofsuch date in accordance with GAAP if such obligations were accounted for asCapitalized Lease Obligations.

 

“B Share Fees” shallmean (a) the contingent deferred sales charges payable to the Borrower by aninvestor in a load fund offered by the Borrower upon any redemption by suchinvestor prior to a certain number of years after such investor’s investment insuch fund and (b) the distribution fees payable by an investor in a load fundoffered by the Borrower, in each case payable at the times and in the amountsdescribed in the Janus Capital Funds plc prospectus dated September 29, 2006and the Janus Selection prospectus dated September 29, 2006, in each case asamended from time to time, or the prospectus for any other substantiallysimilar fund.

 

“B Share Purchaser”shall mean either a Finance Subsidiary or a financial institution or trust thatpurchases B Share Fees in connection with a Permitted B Share True SaleTransaction.

 

“Board” shall meanthe Board of Governors of the Federal Reserve System of the United States.

 

“Borrower” shall havethe meaning assigned to such term in the preamble to this Agreement.

 

“Borrowing” shallmean (a) a Standby Borrowing or (b) a Competitive Borrowing.

 

“Business Day” shallmean any day (other than a day which is a Saturday, Sunday or legal holiday inthe State of New York) on which banks are open for business in New York City; provided,however, that, when used in connection with a Eurodollar Loan, the term“Business Day” shall also exclude any day on which banks are not open fordealings in dollar deposits in the London interbank market.

 

“Capital Group Partners”shall mean Capital Group Partners, Inc., a New York corporation.

 

“Capitalized LeaseObligations” of any Person shall mean the obligations of such Person underany lease that would be capitalized on a balance sheet of such 

 

5

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Person prepared in accordancewith GAAP, and the amount of such obligations at any time shall be thecapitalized amount thereof at such time determined in accordance with GAAP.

 

“CERCLA” shall meanthe Comprehensive Environmental Response, Compensation and Liability Act of 1980,as amended by the Superfund Amendments and Reauthorization Act of 1986.

 

“CFC” shall mean a“controlled foreign corporation” within the meaning of Section 957(a) of theCode.

 

A “Change in Control”shall be deemed to have occurred if, at any time, (a) less than a majority ofthe members of the board of directors of the Borrower shall be (i) individualswho are members of such board on the Restatement Effective Date or (ii) individualswhose election, or nomination for election by the Borrower’s stockholders, wasapproved by a vote of at least a majority of the members of the board then inoffice who are individuals described in clause (i) above or this clause (ii) or(b) any Person or any two or more Persons acting as a partnership, limitedpartnership, syndicate or other group for the purpose of acquiring, holding,voting or disposing of Equity Interests in the Borrower shall become, accordingto public announcement or filing, the “beneficial owner” (as defined in Rule 13d-3under the Securities Exchange Act of 1934, as amended), directly or indirectly,of Equity Interests in the Borrower representing 35% or more (calculated inaccordance with such Rule 13d-3) of the combined voting power of the Borrower’sthen outstanding voting Equity Interests.

 

“Charges” shall havethe meaning assigned to such term in Section 9.09.

 

“Citigroup Parties”shall have the meaning assigned to such term in Section 9.17(e).

 

“Closing Date” shallmean June 1, 2007, which is the date on which the conditions specified in Section4.01 of the Existing Credit Agreement were satisfied.

 

“Code” shall mean theInternal Revenue Code of 1986, as the same may be amended from time to time.

 

“Collateral” shallmean any and all assets, whether real or personal, tangible or intangible, onwhich Liens are purported to be granted pursuant to the Security Documents assecurity for the Obligations.

 

“Collateral Agreement”shall mean the Guarantee and Collateral Agreement among the Borrower, the otherLoan Parties and the Agent, substantially in the form of Exhibit E, togetherwith all supplements thereto.

 

“Collateral and GuaranteeRequirement” shall mean, at any time, the requirement that:

 

6

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##### (a) the Agent shall have received from theBorrower and each Designated Subsidiary either (i) a counterpart of theCollateral Agreement duly executed and delivered on behalf of such Person or (ii)in the case of any Person that becomes a Designated Subsidiary after theRestatement Effective Date, a supplement to the Collateral Agreement, in theform specified therein, duly executed and delivered on behalf of such Person,together with such documents and legal opinions as the Agent may reasonablyrequest;

#####  

##### (b) all Equity Interests in the Subsidiaries(other than Janus Capital Management LLC and the Excluded Subsidiary) owned byor on behalf of any Loan Party shall have been pledged pursuant to theCollateral Agreement and, in the case of Equity Interests in any ForeignSubsidiary, where reasonably requested by the Agent in connection with a pledgeof such Equity Interests, a Foreign Pledge Agreement (provided that theLoan Parties shall not be required to pledge more than 65% of the outstandingvoting Equity Interests of any CFC), and the Agent shall, to the extentrequired by the Collateral Agreement, have received certificates or otherinstruments representing all such Equity Interests, together with undated stockpowers or other instruments of transfer with respect thereto endorsed in blank,together with such documents and legal opinions as the Agent may reasonablyrequest;

#####  

##### (c) (i) all Indebtedness of the Borrower andeach Subsidiary and (ii) all Indebtedness of any other Person in a principalamount of $3,000,000 or more that, in the case of clauses (i) and (ii) above,is owing to any Loan Party shall be evidenced by a promissory note (which maybe a global note in substantially the form of Exhibit F or otherwise in a formreasonably satisfactory to the Agent) that shall have been pledged pursuant tothe Collateral Agreement, and the Agent shall have received all such promissorynotes, together with undated instruments of transfer with respect theretoendorsed in blank;

#####  

##### (d) all documents and instruments, includingUniform Commercial Code financing statements, required by applicable law orreasonably requested by the Agent to be filed, registered or recorded to createthe Liens intended to be created by the Security Documents and perfect suchLiens to the extent required by, and with the priority required by, theSecurity Documents, shall have been filed, registered or recorded or deliveredto the Agent for filing, registration or recording;

#####  

##### (e) the Agent shall have received (i) counterpartsof a Mortgage with respect to each Mortgaged Property duly executed anddelivered by the record owner of such Mortgaged Property, (ii) a policy orpolicies of title insurance issued by a nationally recognized title insurancecompany insuring the Lien of each such Mortgage as a valid and enforceablefirst Lien on the Mortgaged Property described therein, free of any other Liensexcept as permitted by Section 6.02, together with such endorsements,coinsurance and reinsurance as the Agent may reasonably request, (iii) if anyMortgaged Property is located in an area determined by the Federal EmergencyManagement Agency to have special 

 

7

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##### flood hazards, evidence ofsuch flood insurance as may be required under applicable law, includingRegulation H of the Board, and (iv) such legal opinions and other documents asthe Agent may reasonably request with respect to any such Mortgage or MortgagedProperty;

#####  

##### (f) with respect to (i) each deposit account(other than (A) any Excluded Deposit Account and (B) deposit accounts the dailybalance in which does not at any time exceed $2,000,000 for any such account or$5,000,000 in the aggregate for all such accounts) and (ii) each securitiesaccount (other than any Excluded Securities Account), in the case of clauses (i)and (ii) above, maintained by any Loan Party with any depositary bank orsecurities intermediary the assets in which are owned by any Loan Party, theAgent shall have received a counterpart of a Control Agreement, duly executedand delivered by the applicable Loan Party and such depositary bank orsecurities intermediary, as the case may be; and

#####  

##### (g) each Loan Party shall have obtained allconsents and approvals required to be obtained by it in connection with theexecution and delivery of all Security Documents to which it is a party, theperformance of its obligations thereunder and the granting by it of the Liensthereunder.

#####  

The foregoing definitionshall not require the creation or perfection of pledges of or securityinterests in, or the obtaining of title insurance, legal opinions or otherdeliverables with respect to, particular assets of the Loan Parties, or theprovision of a Guarantee by any Subsidiary that is not a Loan Party, if and tothe extent that, and for so long as, (i) the Agent, in consultation with theBorrower, determines that the cost or other burden to the Borrower and theSubsidiaries of creating or perfecting such pledges or security interests insuch assets (including in any real property owned in fee by any Loan Party), orobtaining such title insurance, legal opinions or other deliverables in respectof such assets or the provision of such Guarantee (taking into account anyadverse tax consequences to the Borrower and the Subsidiaries (including theimposition of withholding or other material Taxes)), shall be excessive in viewof the benefits to be obtained by the Lenders therefrom or (ii) the applicableLoan Party or the applicable Subsidiary shall be prohibited by law orregulation from creating or perfecting such security interests in such assetsor providing such Guarantee, as the case may be.  The Agent may grant extensions of time forthe creation and perfection of security interests in or the obtaining of titleinsurance, legal opinions or other deliverables with respect to particularassets (including extensions beyond the Restatement Effective Date) where itdetermines that such action cannot be accomplished or accomplished withoutundue effort or expense by the time or times at which it would otherwise berequired to be accomplished by this Agreement or the Security Documents.

 

“Commitment” shallmean, with respect to each Lender, the commitment of such Lender to makeStandby Loans hereunder, expressed as an amount representing the maximumaggregate amount of such Lender’s Revolving Credit Exposure hereunder, as suchcommitment may be (a) reduced from time to time pursuant to Section 2.11 and (b)reduced or increased from time to time pursuant to assignments by or to suchLender pursuant to Section 9.04.  Theinitial amount of each Lender’s Commitment is set forth 

 

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on Schedule 2.01, or in theAssignment and Assumption pursuant to which such Lender shall have assumed itsCommitment, as applicable.  As of theRestatement Effective Date, the aggregate amount of the Lenders’ Commitments is$125,000,000.

 

“Commitment Fee”shall have the meaning assigned to such term in Section 2.06(a).

 

“Communications”shall have the meaning assigned to such term in Section 9.17(a).

 

“Competitive Bid”shall mean an offer by a Lender to make a Competitive Loan pursuant to Section 2.03.

 

“Competitive BidAccept/Reject Letter” shall mean a written notification made by theBorrower pursuant to Section 2.03(d), which shall be in the form of Exhibit A-4.

 

“Competitive Bid Rate”shall mean, as to any Competitive Bid made by a Lender, (a) in the case of aEurodollar Competitive Loan, the Margin and (b) in the case of a Fixed RateLoan, the fixed rate of interest, in each case, offered by the Lender makingsuch Competitive Bid with respect to such Loan.

 

“Competitive Bid Request”shall mean a written request made by the Borrower pursuant to Section 2.03(a),which shall be in the form of Exhibit A-1.

 

“Competitive Borrowing”shall mean a borrowing consisting of a Competitive Loan or concurrentCompetitive Loans from a Lender or Lenders whose Competitive Bids for suchborrowing have been accepted by the Borrower pursuant to the bidding procedureset forth in Section 2.03.

 

“Competitive Loan”shall mean a loan from a Lender to the Borrower pursuant to the biddingprocedure set forth in Section 2.03. Each Competitive Loan shall be a Eurodollar Competitive Loan or a FixedRate Loan.

 

“Confidential Memorandum”shall mean the Confidential Information Memorandum of the Borrower dated April 2009.

 

“Consolidated EBITDA”shall mean, for any period, Consolidated Net Income for such period, plus(a) without duplication and to the extent deducted (or in the case of (v) below,not included) in determining such Consolidated Net Income, the sum for suchperiod of (i) Consolidated Interest Expense, (ii) provision for taxes for theBorrower and the Consolidated Subsidiaries, (iii) depreciation expense oramortization expense (including amortization expense relating to prepaid salescommissions, but net of the amount of sales commissions paid during suchperiod), (iv) impairment charges on the securities of Stanfield VictoriaFunding LLC in an aggregate amount for all periods not in excess of$70,000,000, (v) cash payments received by the Borrower upon the termination ofhedging programs for the Borrower’s or any Consolidated Subsidiary’s mutualfund unit awards program and (vi) realized losses from the sale of thesecurities of 

 

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Stanfield Victoria Funding LLCin an aggregate amount for all periods not in excess of $81,000,000,  minus (b) without duplication and tothe extent included in determining such Consolidated Net Income, gains from thereversal of previously recognized impairment charges on the securities ofStanfield Victoria Funding LLC in an aggregate amount for all periods not inexcess of $109,000,000, all determined in accordance with GAAP.

 

“Consolidated InterestExpense” shall mean, for any period, total interest expense of the Borrowerand the Consolidated Subsidiaries on a consolidated basis for such period,determined in accordance with GAAP, including (a) the amortization of debtdiscounts to the extent included in interest expense in accordance with GAAP, (b)the amortization of all fees (including fees with respect to interest rateprotection agreements or other interest rate hedging arrangements) payable inconnection with the incurrence of Indebtedness to the extent included ininterest expense in accordance with GAAP and (c) the portion of any rentspayable under capital leases allocable to interest expense in accordance withGAAP.

 

“Consolidated Net Income”shall mean, for any period, the net income of the Borrower and the ConsolidatedSubsidiaries on a consolidated basis for such period, determined in accordancewith GAAP, but without giving effect to (a) any extraordinary gains for suchperiod, (b) any gains for such period relating to the sale, transfer or otherdisposition of any assets of the Borrower or any Consolidated Subsidiary (otherthan in the ordinary course of business), (c) any costs, expenses or lossesincurred during such period (which for each annual period commencing on theClosing Date or any anniversary thereof shall not exceed $200,000,000, and inthe aggregate for all such periods shall not exceed $600,000,000) consisting ofor relating or attributable to (i) the sale, transfer or other disposition, inwhole or in part, of any Subsidiary or other Affiliate of the Borrower, (ii) anyexchange, repayment, prepayment, purchase or redemption by the Borrower or anyConsolidated Subsidiary of the outstanding Indebtedness of the Borrower and (iii)any fines, penalties, damages, or restitution or other settlement paymentsrelated to regulatory investigations into trading practices in the mutual fundindustry, (d) any costs, expenses or losses incurred during such periodconsisting of or relating or attributable to (i) non-cash write-downs ofgoodwill and intangible assets and (ii) any non-cash amortization of long-termincentive compensation, but giving effect to any net cash payments by theBorrower and the Consolidated Subsidiaries relating to long-term incentivecompensation, and (e)(i) non-cash extraordinary losses, (ii) non-recurring cashcharges relating to severance expense, (iii) non-recurring cash chargesrelating to the settlement of a dispute with a former employee of the Borrower(in an aggregate amount for all periods not to exceed $5,000,000), (iv) unrealizedgains or losses in net investments in seed financing for early stage funds orportfolios or (v) non-cash non-recurring restructuring charges, in each caseincurred during such period; provided that there shall be excluded theincome of (A) the Excluded Subsidiary and (B) any Consolidated Subsidiary thatis not wholly owned by the Borrower to the extent such income or such amountsare attributable to the noncontrolling interest in such ConsolidatedSubsidiary.

 

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“Consolidated Subsidiary”shall mean each Subsidiary the financial statements of which are required to beconsolidated with the financial statements of the Borrower in accordance withGAAP.

 

“Consolidated TotalAssets” shall mean at any date the total assets of the Borrower and theConsolidated Subsidiaries at such date, determined on a consolidated basis inaccordance with GAAP.

 

“Consolidated TotalIndebtedness” shall mean at any date all Indebtedness of the Borrower andthe Consolidated Subsidiaries at such date, determined on a consolidated basisin accordance with GAAP; provided that, in determining ConsolidatedTotal Indebtedness at any date, any Indebtedness that, at such date,constitutes Delayed Application Replacement Indebtedness in respect of anyother Indebtedness shall be disregarded to the extent the principal amount ofsuch other Indebtedness is included in Consolidated Total Indebtedness at suchdate.

 

“Control” shall meanthe possession, directly or indirectly, of the power to direct or cause thedirection of the management or policies of a Person, whether through theownership of voting securities, by contract or otherwise, and “Controlling” and“Controlled” shall have meanings correlative thereto.

 

“Control Agreement”shall mean, with respect to any deposit account or securities account maintainedby any Loan Party, a control agreement in form and substance reasonablysatisfactory to the Agent, duly executed and delivered by such Loan Party and thedepositary bank or the securities intermediary, as the case may be, with whichsuch account is maintained.

 

“Controlled Group”shall mean all trades or businesses (whether or not incorporated) that,together with the Borrower or any Subsidiary, are treated as a single employerunder Section 414(b) or 414(c) of the Code or, solely for purposes of Section 302of ERISA and Section 412 of the Code, are treated as a single employer under Section414 of the Code.

 

“Default” shall meanany event or condition which is, or upon notice, lapse of time or both wouldconstitute, an Event of Default.

 

“DelayedApplication Replacement Indebtedness” shall mean, in respect of anyIndebtedness (“Original Indebtedness”), Indebtedness that is incurredfor the purpose of refinancing or replacing such Original Indebtedness, but theproceeds of which shall not have been applied to make such a refinancing orreplacement upon the incurrence thereof, if and for so long as (a) suchIndebtedness otherwise meets, with respect to such Original Indebtedness, therequirements set forth in the definition of the term “Replacement Indebtedness”and (b) all the proceeds of such Indebtedness are held in a deposit account ofthe Borrower with respect to which the Agent shall have received counterpartsof a Control Agreement, duly executed by the Borrower and the depository bankwith which such deposit account is held, that shall provide that (A) the Agentshall have a right of withdrawal with respect to such deposit account in theevent an Event of 

 

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Defaultor any event that, upon the lapse of time would constitute an Event of Default,under clause (b) or (c) of Article VII shall have occurred and be continuing,and (B) the Borrower shall not have a right of withdrawal with respect to suchdeposit account without the prior consent of the Agent (with the Agent herebyconsenting that the Borrower may withdraw funds from such account if (i) at thetime thereof, either (A) no Event of Default shall have occurred and becontinuing or (B)(1) no Event of Default, and no event that, upon lapse of timewould constitute an Event of Default, under clause (b) or (c) of Article VIIshall have occurred and be continuing and (2) no Loans shall be outstanding, (ii)immediately following such withdrawal, such funds shall be applied to make anysuch refinancing or replacement of such Original Indebtedness or to repay suchIndebtedness and (iii) the Borrower shall have delivered to the Agent acertificate of a Financial Officer of the Borrower as to the matters set forthin the preceding clauses (i) and (ii)); provided that any Indebtednessthat otherwise meets the requirements set forth in this definition shall ceaseto be Delayed Application Replacement Indebtedness on the date that is 90 daysfollowing the date of the incurrence thereof. The Borrower hereby grants to the Agent, for the benefit of the SecuredParties, a security interest in each such deposit account and all moneys,investments and other property at any times held in, or credited to, any suchdeposit account, as collateral for the payment and performance of theObligations.

 

“Designated Subsidiary”shall mean each Domestic Subsidiary, other than any Subsidiary that (a) hasassets with a total book value of $1,000,000 or less and (b) does not have anyIndebtedness outstanding.

 

“Disclosed Matter” shallmean the existence or occurrence of any matter which has been disclosed by theBorrower (a) on Schedule 3.08, (b) in its Annual Report on Form 10-K for thefiscal year ended December 31, 2008, its Quarterly Report on Form 10-Q for thefiscal quarter ended March 31, 2009 and any Current Report on Form 8-K filedwith or furnished to the Securities and Exchange Commission subsequent to thedate of the filing or furnishing of such Quarterly Report, in each case in theform such report has been filed with or furnished to the Securities andExchange Commission prior to the Restatement Effective Date, or (c) in theConfidential Memorandum; provided that no matter shall constitute a“Disclosed Matter” to the extent it shall prove to be, or shall become, materiallymore adverse to the Borrower and the Subsidiaries, taken as a whole, or to theLenders than it would have reasonably appeared to be on the basis of thedisclosure contained in any of the documents referred to above.

 

“Disqualified Stock”shall mean, with respect to any Person, any Equity Interest in such Person thatby its terms (or by the terms of any security into which it is convertible orfor which it is exchangeable, either mandatorily or at the option of the holderthereof), or upon the happening of any event or condition:

 

#### (a)matures or is mandatorily redeemable (other than solely for Equity Interests insuch Person that do not constitute Disqualified Stock and cash in lieu offractional shares of such Equity Interests), whether pursuant to a sinking fundobligation or otherwise;

 

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#### (b)is convertible or exchangeable at the option of the holder thereof forIndebtedness or Equity Interests (other than solely for Equity Interests insuch Person that do not constitute Disqualified Stock and cash in lieu offractional shares of such Equity Interests); or

####  

#### (c)is redeemable (other than solely for Equity Interests in such Person that donot constitute Disqualified Stock and cash in lieu of fractional shares of suchEquity Interests) or is required to be repurchased by such Person or any of itsAffiliates, in whole or in part, at the option of the holder thereof;

####  

in each case, on or prior tothe date 180 days after the Maturity Date; provided, however, thatan Equity Interest in any Person that would not constitute a Disqualified Stockbut for terms thereof giving holders thereof the right to require such Personto redeem or purchase such Equity Interest upon the occurrence of an “assetsale” or a “change of control” shall not constitute a Disqualified Stock if anysuch requirement becomes operative only after repayment in full of all theLoans and all other Loan Documents Obligations that are accrued and payable andthe termination or expiration of the Total Commitment.

 

“Domestic Subsidiary”shall mean any Subsidiary incorporated or organized under the laws of theUnited States of America, any State thereof or the District of Columbia.

 

“dollars” or “$”shall mean lawful money of the United States of America.

 

“Eligible Assignee”shall mean (a) a Lender, (b) an Affiliate of a Lender, or (c) any other Personapproved by (i) the Agent and (ii) unless an Event of Default has occurred andis continuing at the time the applicable assignment is effected in accordancewith Section 9.04, the Borrower; provided, however, that none of (x)the Borrower, (y) any Affiliate of the Borrower or (z) any investment manager,any investment company or any similar entity that, in each case, is managed oradvised by the Borrower or an Affiliate of the Borrower shall qualify as anEligible Assignee.

 

“Environmental Lien”shall mean a Lien in favor of any governmental entity for (a) any liabilityunder Federal or state environmental laws or regulations (including RCRA andCERCLA) or (b) damages arising from costs incurred by such governmental entityin response to a release of a hazardous or toxic waste, substance orconstituent, or other substance into the environment.

 

“Equity Interests”shall mean shares of capital stock, partnership interests, membershipinterests, beneficial interests or other ownership interests, whether voting ornonvoting, in a Person, and any warrants, options or other rights entitling theholder thereof to purchase or acquire any of the foregoing.

 

“ERISA” shall meanthe Employee Retirement Income Security Act of 1974, as amended from time totime.

 

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“Eurodollar Borrowing”shall mean a Borrowing comprised of Eurodollar Loans.

 

“Eurodollar CompetitiveBorrowing” shall mean a Borrowing comprised of Eurodollar CompetitiveLoans.

 

“Eurodollar CompetitiveLoan” shall mean any Competitive Loan bearing interest at a rate determinedby reference to the LIBO Rate in accordance with Article II.

 

“Eurodollar Loan”shall mean any Eurodollar Competitive Loan or Eurodollar Standby Loan.

 

“Eurodollar StandbyBorrowing” shall mean a Borrowing comprised of Eurodollar Standby Loans.

 

“Eurodollar Standby Loan”shall mean any Standby Loan bearing interest, other than pursuant to thedefinition of the term “Alternate Base Rate”, at a rate determined by referenceto the Adjusted LIBO Rate in accordance with Article II.

 

“Event of Default”shall have the meaning assigned to such term in Article VII.

 

“Excluded Deposit Account”shall mean any deposit account maintained by any Loan Party with any depositorybank the funds in which are used solely for the payment of salaries and wages,workers’ compensation and similar expenses.

 

“Excluded Securities”shall mean securities owned by the Borrower or any Subsidiary that are held inany Excluded Securities Account.

 

“Excluded SecuritiesAccount” shall mean one or more securities accounts maintained by any LoanParty with any securities intermediary that is, or that the Borrower determinescould be, a counterparty to one or more Specified Hedging Agreements with theBorrower or any Subsidiary; provided that the net book value of thecash, securities and other property maintained in all such securities accountsshall not at any time exceed $55,000,000.

 

“Excluded Subsidiary”shall mean Janus Capital Trust Manager Limited; provided that (a) JanusCapital Trust Manager Limited shall be in compliance with Section 6.11 and (b) theBoard of Directors of Janus Capital Trust Manager Limited shall not be underthe Control of the Borrower (it being understood that the ownership of EquityInterests in Janus Capital Trust Manager Limited shall not, in itself andwithout regard to any other means of directing the management or policies ofJanus Capital Trust Manager Limited, be deemed to constitute Control).

 

“Excluded Taxes”shall mean, with respect to any Recipient and without duplication, any of thefollowing:

 

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##### (a) Taxes imposed on any Recipient’s net income, or other similar Taxes imposed inlieu thereof, and franchise Taxes imposed on such Recipient by the UnitedStates or any jurisdiction under the laws of which it is organized or in whichits applicable lending office is located or any political subdivision thereof;

#####  

##### (b) Taxes attributable to such Recipient’s failure to comply with Section 2.19(f);and

#####  

##### (c) U.S. Federal Taxes imposed by any law in effect at the time such Recipient(other than an assignee under Section 2.20) becomes a party hereto ordesignates a new lending office (except to the extent that, pursuant to Section 2.19(a),amounts with respect to such Taxes were payable to (i) such Recipient’sassignor immediately before such Recipient became a party hereto pursuant to anassignment or (ii) such Recipient immediately before it designated suchnew lending office).

#####  

“Existing CreditAgreement” shall have the meaning assigned to such term in the recitals tothis Agreement.

 

“Federal Funds EffectiveRate” shall mean, for any day, the weighted average (rounded upwards, ifnecessary, to the next 1/100 of 1%) of the rates on overnight Federal fundstransactions with members of the Federal Reserve System arranged by Federalfunds brokers on such day, as published on the next succeeding Business Day bythe Federal Reserve Bank of New York, or, if such rate is not so publishedon such next succeeding Business Day, the Federal Funds Effective Rate shall bethe average (rounded upwards, if necessary, to the next 1/100 of 1%) of thequotations for such day for such transactions received by the Agent from threeFederal funds brokers of recognized standing selected by it.

 

“Fee Letter” shallmean, collectively, the letter agreement dated May 14, 2007, and the letteragreement dated April 3, 2009, in each case, among the Borrower, the Agentand Citigroup Global Markets Inc.

 

“Fees” shall mean theCommitment Fee and the Agent’s Fees.

 

“Finance Subsidiary”shall mean any special purpose Subsidiary engaged solely in purchasing, owningand financing receivables as part of a Permitted B Share True Sale Transaction.

 

“Financial Officer”of any Person shall mean the chief financial officer, principal accountingofficer, treasurer, assistant treasurer, controller or assistant controller ofsuch Person.

 

“Fixed Rate Borrowing”shall mean a Borrowing comprised of Fixed Rate Loans.

 

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“Fixed Rate Loan”shall mean any Competitive Loan bearing interest at a fixed percentage rate perannum (expressed in the form of a decimal to no more than four decimal places)specified by the Lender making such Loan in its Competitive Bid.

 

“Foreign Pledge Agreement”shall mean a pledge or charge agreement with respect to Equity Interests in aForeign Subsidiary, in form and substance reasonably satisfactory to the Agent.

 

“Foreign Subsidiary”shall mean any Subsidiary that is not a Domestic Subsidiary.

 

“FSA” shall mean theUnited Kingdom Financial Services Authority.

 

“GAAP” shall meanUnited States generally accepted accounting principles, applied on a consistentbasis.

 

“Governmental Authority”shall mean the government of the United States of America, any other nation orany political subdivision thereof, whether state or local, and any agency,authority, instrumentality, regulatory body, court, central bank or otherentity exercising executive, legislative, judicial, taxing, regulatory oradministrative powers or functions of or pertaining to government (includingany supra-national body exercising such function, such as the European Union orthe European Central Bank).

 

“Granting Lender”shall have the meaning assigned to such term in Section 9.04(f).

 

“Guarantee” of or byany Person (the “guarantor”) means any obligation, contingent or otherwise,of the guarantor guaranteeing or having the economic effect of guaranteeing anyIndebtedness or other obligation of any other Person (the “primary obligor”)in any manner, whether directly or indirectly, and including any monetaryobligation of the guarantor, direct or indirect, (a) to purchase or pay(or advance or supply funds for the purchase or payment of) such Indebtednessor other obligation or to purchase (or to advance or supply funds for thepurchase of) any security for the payment thereof, (b) to purchase orlease property, securities or services for the purpose of assuring the owner ofsuch Indebtedness or other obligation of the payment thereof, (c) tomaintain working capital, equity capital or any other financial statementcondition or liquidity of the primary obligor so as to enable the primaryobligor to pay such Indebtedness or other obligation or (d) as an accountparty in respect of any letter of credit or letter of guaranty issued tosupport such Indebtedness or obligation; provided that the term“Guarantee” shall not include endorsements for collection or deposit in theordinary course of business.

 

“Hedging Agreement”shall mean any agreement with respect to any swap, forward, future orderivative transaction or option or similar agreement involving, or settled byreference to, one or more rates, currencies, commodities, equity or debtinstruments or securities, or economic, financial or pricing indices ormeasures of economic, financial or pricing risk or value, any similar transactionor any combination of the foregoing transactions; provided that nophantom stock or similar plan providing 

 

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for payments only on accountof services provided by current or former directors, officers, employees orconsultants of the Borrower or any Subsidiary shall be a Hedging Agreement.

 

“Hybrid Capital Security”shall mean any hybrid capital security issued by the Borrower that has beenaccorded a “percentage of equity” or like treatment by Moody’s or S&P.

 

“Hybrid Capital SecurityEquity Percentage” shall mean, with respect to any Hybrid Capital Security,the percentage accorded equity treatment by Moody’s or S&P for such HybridCapital Security, as determined by such rating agencies at the time such HybridCapital Security is issued.  For purposesof the foregoing, if the Hybrid Capital Security Equity Percentage establishedor deemed to have been established by Moody’s and S&P for any HybridCapital Security shall differ, then the Hybrid Capital Security EquityPercentage shall be deemed to be the higher of the two Hybrid Capital SecurityEquity Percentages.

 

“IFRS” shall meanInternational Financial Reporting Standards, applied on a consistent basis.

 

“Indebtedness” of anyPerson shall mean, without duplication, (a) all obligations of such Personfor borrowed money, (b) all obligations of such Person evidenced by bonds,debentures, notes, acceptances, equipment trust certificates or similarinstruments, (c) all obligations of such Person issued or assumed as thedeferred purchase price of property or services, other than (i) accountspayable arising in the ordinary course of such Person’s business on termscustomary in the trade and (ii) deferred compensation, (d) allIndebtedness of others secured by (or for which the holder of such Indebtednesshas an existing right, contingent or otherwise, to be secured by) any Lien onproperty owned or acquired by such Person, whether or not such Indebtedness hasbeen assumed (with the amount of the resulting Indebtedness of such Personbeing valued, as of the date of determination, at the lesser of (i) theamount of Indebtedness so secured and (ii) the fair market value of theproperty securing such Indebtedness), (e) all Capitalized LeaseObligations of such Person, (f) all Guarantees by such Person ofIndebtedness of others, (g) all obligations, contingent or otherwise, ofsuch Person as an account party in respect of letters of credit and letters ofguaranty, (h) all obligations, contingent or otherwise, of such Person inrespect of bankers’ acceptances, (i) all Attributable Debt in respect ofany Sale and Leaseback Transaction of such Person and (j) all DisqualifiedStock in such Person, valued, as of the date of determination, at the greaterof (i) the maximum aggregate amount that would be payable upon maturity,redemption, repayment or repurchase thereof (or of Disqualified Stock orIndebtedness into which such Disqualified Equity Interests are convertible orexchangeable) and (ii) the maximum liquidation preference of suchDisqualified Stock.  The Indebtedness ofany Person shall include the Indebtedness of any other entity (including anypartnership in which such Person is a general partner) to the extent such Personis liable therefor as a result of such Person’s ownership interest in or otherrelationship with such entity, except to the extent the terms of suchIndebtedness provide that such Person is not liable therefor.

 

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“IndemnifiedTaxes” shall mean Taxes (including Other Taxes) other than Excluded Taxes.

 

“Indemnitee” shallhave the meaning assigned to such term in Section 9.05(b).

 

“Index Debt” shallmean senior, unsecured, long-term indebtedness for borrowed money of theBorrower that is not guaranteed by any other Person or subject to any othercredit enhancement.

 

“INTECH” shall meanINTECH Investment Management LLC, a Delaware limited liability company(formerly known as Enhanced Investment Technologies, LLC).

 

“Intellectual Property”shall have the meaning assigned to such term in the Collateral Agreement.

 

“Interest Coverage Ratio”shall mean for any period of four consecutive fiscal quarters ended on the lastday of any fiscal quarter, the ratio of (a) Consolidated EBITDA for suchperiod to (b) Consolidated Interest Expense for such period.

 

“Interest ElectionRequest” shall have the meaning assigned to such term in Section 2.05(b).

 

“Interest Payment Date”shall mean, (a) with respect to any ABR Loan, the last day of each March,June, September and December, and (b) with respect to anyEurodollar Loan or any Fixed Rate Loan, the last day of the Interest Periodapplicable to the Borrowing of which such Loan is a part and, in the case of aEurodollar Loan with an Interest Period of more than three months’ duration ora Fixed Rate Loan with an Interest Period of more than 90 days’ duration,each day that would have been an Interest Payment Date for such Loan hadsuccessive Interest Periods of three months’ duration or 90 days’ duration,as the case may be, been applicable to such Loan.

 

“Interest Period”shall mean (a) as to any Eurodollar Borrowing, the period commencing onthe date of such Borrowing and ending on the numerically corresponding day (or,if there is no numerically corresponding day, on the last day) in the calendarmonth that is 1, 2, 3, 6 or, if available to all the Lenders, 9 or12 months thereafter, as the Borrower may elect, and (b) as to anyFixed Rate Borrowing, the period commencing on the date of such Borrowing andending on the date specified in the Competitive Bids in which the offers tomake the Fixed Rate Loans comprising such Borrowing were extended, which shallnot be later than 360 days after the date of such Borrowing; providedthat (i) if any Interest Period would end on a day other than a BusinessDay, such Interest Period shall be extended to the next succeeding Business Dayunless, in the case of Eurodollar Borrowings only, such next succeedingBusiness Day would fall in the next calendar month, in which case such InterestPeriod shall end on the next preceding Business Day, and (ii) any InterestPeriod that commences on the last Business Day of a calendar month (or on a dayfor which there is no numerically corresponding day in the last calendar monthof such Interest Period) shall end on the last 

 

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Business Day of the lastcalendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the dateon which such Borrowing is made and, in the case of a Standby Borrowing,thereafter shall be the effective date of the most recent conversion orcontinuation of such Borrowing.

 

“Investment” shallmean, with respect to a specified Person, any Equity Interests, evidences ofIndebtedness or other securities (including any option, warrant or other rightto acquire any of the foregoing) of, or any capital contribution or loans oradvances (other than advances made in the ordinary course of business thatwould be recorded as accounts receivable on the balance sheet of the specifiedPerson prepared in accordance with GAAP) to, Guarantees of any Indebtedness orother obligations of, or any other investment in, any other Person that areheld or made by the specified Person. The amount, as of any date of determination, of (a) any Investmentin the form of a loan or an advance shall be the principal amount thereofoutstanding on such date, (b) any Investment in the form of a Guaranteeshall be the principal amount outstanding on such date of Indebtedness or otherobligation guaranteed thereby (or, in the case of a Guarantee of an obligationthat does not have a principal amount, the maximum monetary exposure of theguarantor as of such date under such Guarantee (as determined reasonably and ingood faith by a Financial Officer of the Borrower)), (c) any Investment inthe form of a transfer of cash or other property by the investor to theinvestee, including any such transfer in the form of a capital contribution,shall be the amount of such cash or the fair market value (as determinedreasonably and in good faith by a Financial Officer of the Borrower) of suchother property as of the time of the transfer, without any adjustment forincreases or decreases in value of, or write-ups, write-downs or write offswith respect to, such Investment, (d) any Investment (other than anyInvestment referred to in clause (a), (b) or (c) above) by thespecified Person in the form of a purchase or other acquisition for value ofany Equity Interests, evidences of Indebtedness or other securities of anyother Person shall be the original cost of such Investment (including anyIndebtedness assumed in connection therewith), plus the cost of all additions,as of such date, thereto, and minus the amount, as of such date, of any portionof such Investment repaid to the investor in cash as a repayment of principalor a return of capital, as the case may be, but without any other adjustmentfor increases or decreases in value of, or write-ups, write-downs or write-offswith respect to, such Investment, and (e) any Investment (other than anyInvestment referred to in clause (a), (b), (c) or (d) above) by thespecified Person in any other Person resulting from the issuance by such otherPerson of its Equity Interests to the specified Person shall be the fair marketvalue (as determined reasonably and in good faith by a Financial Officer of theBorrower) of such Equity Interests at the time of the issuance thereof.

 

“IP Security Agreements”shall have the meaning assigned to such term in the Collateral Agreement.

 

“IRS”shall mean the United States Internal Revenue Service.

 

“Janus CapitalInternational Limited” shall mean Janus Capital International Limited, acompany incorporated under the laws of England and Wales.

 

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“Janus Capital ManagementLLC” shall mean Janus Capital Management LLC, a Delaware limited liabilitycompany.

 

“Janus Capital TrustManager Limited” shall mean Janus Capital Trust Manager Limited, an Irishsingle-member private company limited by shares.

 

“Janus InternationalHolding LLC” shall mean Janus International Holding LLC, a Nevada limitedliability company.

 

“JCILDistributions Amount” shall mean, at any time, the aggregate amount ofdividends and other Restricted Payments made by Janus Capital InternationalLimited to Janus International Holding LLC in cash since the RestatementEffective Date and on or prior to such time.

 

“Lenders”shall mean the Persons listed on Schedule 2.01 and any other Person thatshall have become a party hereto pursuant to an Assignment and Assumption,other than any such Person that shall have ceased to be a party hereto pursuantto an Assignment and Assumption.

 

“Leverage Ratio”shall mean, on any date, the ratio of (a) Consolidated Total Indebtednessas of such date, excluding, to the extent otherwise included therein, for eachHybrid Capital Security the product obtained by multiplying (i) theaggregate amount of such Hybrid Capital Security outstanding as of such date by(ii) the Hybrid Capital Equity Security Percentage for such Hybrid CapitalSecurity as of such date, to (b) Consolidated EBITDA for the period offour consecutive fiscal quarters of the Borrower ended on such date (or, ifsuch date is not the last day of a fiscal quarter, on the last day of thefiscal quarter of the Borrower most recently ended prior to such date).

 

“LIBO Rate” shallmean, with respect to any Eurodollar Borrowing for any Interest Period, therate appearing on the Reuters “LIBOR01” screen (or on any successor orsubstitute screen of such service, or any successor to or substitute for suchservice, providing rate quotations comparable to those currently provided onsuch screen of such service, as determined by the Agent from time to time forpurposes of providing quotations of interest rates applicable to dollardeposits in the London interbank market) at approximately 11:00 a.m.,London time, two Business Days prior to the commencement of such InterestPeriod, as the rate for dollar deposits with a maturity comparable to suchInterest Period.  In the event that suchrate is not available at such time for any reason, then the “LIBO Rate”with respect to such Eurodollar Borrowings for such Interest Period shall bethe average (rounded upward to the nearest whole multiple of 1/16 of 1% perannum, if such average is not such a multiple) of the rate per annum at whichdollar deposits are offered by the principal office of each of the ReferenceBanks in London, England to prime banks in the London interbank market at 11:00 a.m.,London time, two Business Days before the first day of such Interest Period inan amount substantially equal to the amount that would be the Reference Banks’respective ratable shares of such Eurodollar Borrowing if such Eurodollar Borrowingwere to be a Standby Borrowing to be outstanding during such Interest Periodand for a period equal to such Interest Period.

 

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“Lien” shall mean,with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,hypothecation, charge, security interest or other encumbrance on, in or of suchasset, including any agreement to provide any of the foregoing and anyarrangement entered into for the purpose of making particular assets availableto satisfy any Indebtedness or other obligation and having the effect of any ofthe foregoing, (b) the interest of a vendor or a lessor under anyconditional sale agreement, capital lease or title retention agreement (or anyfinancing lease having substantially the same economic effect as any of theforegoing) relating to such asset and (c) in the case of securities, anypurchase option, call or similar right of a third party with respect to suchsecurities. For the avoidance of doubt, the term “Lien” shall not includelicenses of Intellectual Property.

 

“LLC Guarantee” shallmean the Guarantee Agreement dated as of June 1, 2007, between JanusCapital Management LLC and the Agent.

 

“Loan” shall mean aCompetitive Loan or a Standby Loan, whether made as a Eurodollar Loan, an ABRLoan or a Fixed Rate Loan, each as permitted hereby.

 

“Loan DocumentObligations” shall have the meaning assigned to such term in the CollateralAgreement.

 

“Loan Documents”shall mean this Agreement, the Amendment Agreement, the Collateral Agreement,the other Security Documents, the Fee Letter and the LLC Guarantee.

 

“Loan Parties” shallmean the Borrower and the Subsidiary Loan Parties.

 

“Long-Term Assets UnderManagement” shall mean, as of the close of business in New York City on anyBusiness Day, the daily total of long-term assets under management of theBorrower and the Consolidated Subsidiaries on such date (excluding money marketfund assets), determined in a manner consistent with the calculationmethodology reported in the Borrower’s Annual Report on Form 10-K for thefiscal year ended December 31, 2008 (as the same may be amended orrestated to correct any misstatements therein).

 

“Margin” shall mean,as to any Eurodollar Competitive Loan, the margin (expressed as a percentagerate per annum in the form of a decimal to no more than four decimal places) tobe added to or subtracted from the LIBO Rate in order to determine the interestrate applicable to such Loan, as specified in the Competitive Bid relating tosuch Loan.

 

“Margin Stock” shallhave the meaning given such term under Regulation U.

 

“Material Adverse Effect”shall mean a material adverse effect on (a) the business, assets,liabilities, operations, financial condition or prospects of the Borrower andthe Subsidiaries, taken as a whole, (b) the ability of the Borrower or anyother Loan Party to perform any of its obligations under any Loan Document or (c) therights of or 

 

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benefits available to theLenders under any Loan Document; provided that, for purposes of clause (a) above,no Disclosed Matter shall constitute a Material Adverse Effect.

 

“Material Indebtedness”shall mean Indebtedness (other than the Loans and Guarantees under the LoanDocuments) in an aggregate principal amount of $25,000,000 or more orobligations in respect of one or more Hedging Agreements in an aggregateprincipal amount of $25,000,000 or more, in either case, of any one or more ofthe Borrower and the Subsidiaries.  Forpurposes of determining Material Indebtedness, the “principal amount” of theobligations of the Borrower or any Subsidiary in respect of any HedgingAgreement at any time shall be the maximum aggregate amount (giving effect toany netting agreements) that the Borrower or such Subsidiary would be requiredto pay if such Hedging Agreement were terminated at such time.

 

“Maturity Date” shallmean December 1, 2010.

 

“Maximum Availability”shall mean, for any day, the applicable dollar amount set forth below basedupon the dollar amount of Long-Term Assets Under Management:

 
| **Long-Term Assets Under Management**                                                          | ** ** | **Amount** | ** **  |
|------------------------------------------------------------------------------------------------|------------|------------|-------------|
|                                                                                           |       |       |        |
| Category 1

 

Greater than or equal to $105,000,000,000:                                 |       | $          | 125,000,000 |   |
|                                                                                           |       |       |        |
| Category 2

 

Less than $105,000,000,000 and greater than or equal  to $100,000,000,000: |       | $          | 100,000,000 |   |
|                                                                                           |       |       |        |
| Category 3

 

Less than $100,000,000,000 and greater than or equal  to $95,000,000,000:  |       | $          | 75,000,000  |   |
|                                                                                           |       |       |        |
| Category 4

 

Less than $95,000,000,000 and greater than or equal  to $85,000,000,000:   |       | $          | 50,000,000  |   |
|                                                                                           |       |       |        |
| Category 5

 

Less than $85,000,000,000                                                  |       | $          | 0           |   |

 

For purposes of theforegoing, Long-Term Assets Under Management shall be determined (a) as ofthe Restatement Effective Date, by reference to the certificate of the chieffinancial officer of the Borrower delivered pursuant to Section 3(a)(iii) ofthe Amendment Agreement, and (b) as of any day thereafter, subject to theimmediately following sentence, by reference to the certificate most recentlydelivered pursuant to Section 5.04(g), 5.04(h) or 5.04(i).  Each change in Maximum Availability resultingfrom a change in Long-Term Assets Under Management from one Category to anothershall become effective only if Long-Term Assets Under Management shall havebeen at a level 

 

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indicating a new Categoryfor five consecutive Business Days (and shall become effective as of the dayimmediately following such fifth consecutive Business Day).

 

“Maximum Rate” shallhave the meaning assigned to such term in Section 9.09.

 

“Minimum AUM” shallmean $80,000,000,000.

 

“Moody’s” shall meanMoody’s Investors Service, Inc.

 

“Mortgage” shall meana mortgage, deed of trust, assignment of leases and rents, leasehold mortgageor other security document granting a Lien on any Mortgaged Property to securethe Obligations.  Each Mortgage shall bereasonably satisfactory in form and substance to the Agent.

 

“Mortgaged Property”shall mean each parcel of real property owned in fee by a Loan Party, and theimprovements thereto, that has a book or fair market value of $1,000,000 ormore.

 

“Multiemployer Plan”shall mean a “multiemployer plan” as defined in Section 4001(a)(3) ofERISA as to which the Borrower or any member of the Controlled Group may haveany liability.

 

“Net Proceeds” shallmean, with respect to any event (a) the cash proceeds received in respectof such event, including any cash received in respect of any noncash proceeds,but only as and when received, net of (b) the sum, without duplication, of(i) all reasonable fees and out-of-pocket expenses paid in connection withsuch event by the Borrower and the Subsidiaries to Persons that are notAffiliates of the Borrower or any Subsidiary (including, in the case of theissuance of any preferred Equity Interests in the Borrower, underwritingdiscounts and commissions paid in connection therewith), (ii) in the caseof a sale, transfer or other disposition of any asset, the amount of allpayments required to be made by the Borrower and the Subsidiaries as a resultof such event to repay secured Indebtedness (other than Loans) and (iii) theamount of all Taxes paid (or reasonably estimated to be payable) by theBorrower and the Subsidiaries, and the amount of any reserves established bythe Borrower and the Subsidiaries to fund contingent liabilities reasonablyestimated to be payable, in each case during the year that such event occurredor the next succeeding year and that are directly attributable to such event(as determined reasonably and in good faith by a Financial Officer of theBorrower).

 

“New Lending Office”shall have the meaning assigned to such term in Section 2.19(f).

 

“Obligations” shallhave the meaning assigned to such term in the Collateral Agreement.

 

“Other Taxes” shallmean all present or future stamp, court, documentary, excise, property, intangible,recording, filing or similar Taxes that arise from any 

 

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payment made under, from theexecution, delivery, performance, enforcement or registration of, or from theregistration, receipt or perfection of a security interest under, or otherwisewith respect to, any Loan Document.

 

“ParticipantRegister” shall have the meaning assigned to such term in Section 9.04(e).

 

“Patriot Act” shallhave the meaning assigned to such term in Section 9.18.

 

“PBGC” shall mean thePension Benefit Guaranty Corporation referred to and defined in ERISA.

 

“Perfection Certificate”shall mean the Perfection Certificate delivered on the Restatement EffectiveDate pursuant to Section 3(d) of the Amendment Agreement.

 

“Perkins” shall meanPerkins Investment Management LLC, a Delaware limited liability company(formerly known as Perkins, Wolf, McDonnell and Company LLC).

 

“Permitted B ShareRecourse Financing Transaction” shall mean any pledge by the Borrower ofthe B Share Fees to third parties in order to secure Indebtedness extended tothe Borrower by such third parties; provided that the Agent shallbe reasonably satisfied with the structure and documentation for suchtransaction and that the terms of such transaction, including the advance rateand any termination events, shall be consistent with those prevailing in themarket at the time for similar transactions.

 

“Permitted B ShareTransaction” shall mean a Permitted B Share True Sale Transaction or aPermitted B Share Recourse Financing Transaction.

 

“Permitted B Share TrueSale Transaction” shall mean any sale by the Borrower of B Share Fees to aB Share Purchaser in a true sale transaction without any recourse based uponthe collectability of the B Share Fees sold and the sale or pledge of such BShare Fees (or an interest therein) by such B Share Purchaser, in each casewithout any Guarantee by, or other recourse to, or credit support by, theBorrower or any Subsidiary (other than to such B Share Purchaser, if it is aFinance Subsidiary) or recourse to any assets of the Borrower or anySubsidiary; provided that the Agent shall be reasonably satisfied withthe structure and documentation for such transaction and that the terms of suchtransaction, including the price at which B Share Fees are sold to such B SharePurchaser and any termination events, shall be consistent with those prevailingin the market at the time for similar transactions.

 

“Permitted Investments”shall mean:

 

##### (a) direct obligations of, or obligations as to which the principal of and intereston are unconditionally guaranteed by, the United States of America (or anyagency thereof to the extent such obligations are backed by the full faith and 

#####  

##### 24

##### 

 

##### credit of the United Statesof America), in each case maturing within one year from the date of acquisitionthereof;

#####  

##### (b) investments in commercial paper maturing within 270 days from the date ofacquisition thereof and having, at such date of acquisition, the highest creditrating obtainable from S&P or Moody’s;

#####  

##### (c) investments in certificates of deposit, banker’s acceptances and time depositsmaturing within 180 days from the date of acquisition thereof issued orguaranteed by or placed with, and money market deposit accounts issued oroffered by, any domestic office of any commercial bank organized under the lawsof the United States of America or any State thereof that has a combinedcapital and surplus and undivided profits of not less than $500,000,000;

#####  

##### (d) fully collateralized repurchase agreements with a term of not more than 30 daysfor securities described in clause (a) above and entered into with afinancial institution satisfying the criteria described in clause (c) above;

#####  

##### (e) money market funds that (i) comply with the criteria set forth in Rule 2a-7under the Investment Company Act of 1940, (ii) are rated AAA by S&Pand Aaa by Moody’s and (iii) have portfolio assets of at least$5,000,000,000; and

#####  

##### (f) in the case of any Foreign Subsidiary, other short-term investments that areanalogous to the foregoing, are of comparable credit quality and arecustomarily used by companies in the jurisdiction of such Foreign Subsidiaryfor cash management purposes.

#####  

“Person” shall meanany natural person, corporation, trust, joint venture, association, company,partnership, limited liability company, Governmental Authority or other entity.

 

“Plan” shall mean anyemployee pension benefit plan (other than a Multiemployer Plan) that is subjectto Title IV of ERISA or subject to the minimum funding standards under Section 412of the Code or Section 302 of ERISA sponsored, maintained or contributedto by the Borrower or any member of the Controlled Group.

 

“Platform” shall havethe meaning assigned to such term in Section 9.17(b).

 

“Prime Rate” shallmean the rate of interest per annum publicly announced from time to time by theAgent as its prime rate in effect at its principal office in New YorkCity.  The Prime Rate is not intended tobe the lowest rate of interest charged by the Agent in connection withextensions of credit to debtors. Each change in the Prime Rate shall beeffective on the date such change is publicly announced as effective.

 

“Pro Rata Percentage”of any Lender at any time shall mean the percentage of the Total Commitmentrepresented by such Lender’s Commitment at such 

 

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time.  In the event that the Total Commitment shallhave expired or been terminated, the Pro Rata Percentage with respect to anyLender shall be such Lender’s Pro Rata Percentage most recently in effect priorto such expiration or termination of the Total Commitment, giving effect to anysubsequent assignments pursuant to Section 9.04.

 

“RCRA” shall mean theResources Conservation and Recovery Act, as the same may be amended from timeto time.

 

“Recipient”shall mean, as applicable, (a) any Person to which any payment on accountof any obligation of a Loan Party under any Loan Document is made or owed,including the Agent or any Lender or (b) the beneficial owner of anyPerson described in clause (a).

 

“Reference Banks”shall mean Citibank, N.A., JPMorgan Chase Bank, N.A. and Wells Fargo Bank, N.A.

 

“Register” shall havethe meaning assigned to such term in Section 9.04(c).

 

“Regulation D”shall mean Regulation D of the Board as from time to time in effect andall official rulings and interpretations thereunder or thereof.

 

“Regulation U”shall mean Regulation U of the Board as from time to time in effect andall official rulings and interpretations thereunder or thereof.

 

“Replacement Indebtedness”shall mean, in respect of any Indebtedness (“Original Indebtedness”),Indebtedness extending the maturity of or refunding, refinancing or replacing,in whole or in part, such Original Indebtedness; provided that (a) theprincipal amount of such Replacement Indebtedness shall not exceed theprincipal amount of such Original Indebtedness except by an amount no greaterthan accrued and unpaid interest with respect to such Original Indebtedness andreasonable fees, premium and expenses relating to such extension, refunding,refinancing or replacing; (b) no Subsidiary shall be liable for any suchReplacement Indebtedness that shall not have been liable for such OriginalIndebtedness; (c) if such Original Indebtedness shall have beensubordinated to the Obligations, such Replacement Indebtedness shall besubordinated to the Obligations on terms not less favorable to the Lenders; (d) suchReplacement Indebtedness shall not mature before the date that is at least sixmonths after the Maturity Date and shall not be subject to any requirement notapplicable to such Original Indebtedness that such Replacement Indebtedness beprepaid, redeemed, repurchased or defeased on one or more scheduled dates orupon the happening of one or more events (other than events of default orchange of control events) before the date that is at least six months after theMaturity Date; (e) the incurrence of any Replacement Indebtedness thatrefunds, refinances or replaces Original Indebtedness under any revolvingcredit or similar facility shall be accompanied by the termination ofcommitments under such facility equal in amount to such Original Indebtedness;and (f) such Replacement Indebtedness shall not be secured by any Lien onany asset other than the assets that secured such Original Indebtedness (orwould have been required to secure such Original 

 

26

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Indebtedness pursuant to theterms thereof) or, in the event Liens securing the Original Indebtedness shallhave been contractually subordinated to any Lien securing the Obligations, byany Lien that shall not have been contractually subordinated to at least thesame extent.

 

“Related Parties”shall mean, with respect to any specified Person, such Person’s Affiliates andthe directors, officers, partners, trustees, employees, agents and advisors ofsuch Person and of such Person’s Affiliates.

 

“Reportable Event”shall mean any reportable event as defined in Section 4043 of ERISA andthe regulations issued under such Section with respect to a Plan,excluding, however, such events as to which the PBGC by regulation or bytechnical update waived the requirement of Section 4043(a) of ERISAthat it be notified within 30 days of the occurrence of such event; providedthat a failure to meet the minimum funding standard of Section 412 of theCode or Section 302 of ERISA applicable to such Plan shall be a reportableevent regardless of the issuance of any waiver in accordance with Section 412(c) ofthe Code or Section 302(c) of ERISA.

 

“Required Lenders”shall mean, at any time, Lenders in the aggregate holding more than 50% of theTotal Commitment or, for purposes of acceleration pursuant to clause (ii) ofArticle VII or if the Total Commitment has been terminated, Lenders in theaggregate representing more than 50% of the sum of the Revolving CreditExposure and the principal amount of the outstanding Competitive Loans.

 

“Responsible Officer”of any Person shall mean any executive officer or Financial Officer of suchPerson and any other officer or similar official thereof responsible for theadministration of the obligations of such Person in respect of this Agreementand the other Loan Documents.

 

“Restatement EffectiveDate” shall have the meaning assigned to such term in the AmendmentAgreement.

 

“Restricted Payment”shall mean (a) any dividend or other distribution (whether in cash,securities or other property) with respect to any Equity Interest in theBorrower or any Subsidiary or (b) any payment (whether in cash, securitiesor other property), including any sinking fund or similar deposit, on accountof the purchase, redemption, retirement, acquisition, cancelation ortermination of any Equity Interest in the Borrower or any Subsidiary.

 

“Revolving CreditExposure” shall mean, with respect to any Lender at any time, the aggregateprincipal amount at such time of all outstanding Standby Loans of such Lender.

 

“Sale and LeasebackTransaction” shall have the meaning assigned to such term in Section 6.03.

 

“S&P” shall meanStandard & Poor’s Ratings Services, a division of The McGraw-HillCompanies, Inc.

 

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“Secured Parties”shall have the meaning assigned to such term in the Collateral Agreement.

 

“Security Documents”shall mean the Collateral Agreement, the Foreign Pledge Agreements, the IPSecurity Agreements, the Mortgages, the Control Agreements and each othersecurity agreement executed and delivered pursuant to Section 5.08, 5.09or 5.10 to secure any of the Obligations.

 

“SPC” shall have themeaning set forth in Section 9.04(f).

 

“Specified HedgingAgreements” shall mean one or more Hedging Agreements entered into by theBorrower or any Subsidiary to hedge or mitigate earnings volatility arisingfrom mark-to-market accounting of seed capital investments or to facilitate thecreation of investment track records for, or otherwise entered into inconnection with, seeding of new products.

 

“Standby Borrowing”shall mean Standby Loans of a single Type made, converted or continued on asingle date and, in the case of Eurodollar Standby Loans, as to which a singleInterest Period is in effect.

 

“Standby BorrowingRequest” shall mean a written request made by the Borrower pursuant to Section 2.04,which shall be in the form of Exhibit A-5.

 

“Standby Loans” shallmean the revolving loans made by the Lenders to the Borrower pursuant toSections 2.01 and 2.04.  EachStandby Loan shall be a Eurodollar Standby Loan or an ABR Loan.

 

“Statutory Reserves”shall mean a fraction (expressed as a decimal), the numerator of which is thenumber one and the denominator of which is the number one minus the aggregateof the maximum reserve percentages (including any marginal, special, emergencyor supplemental reserves) expressed as a decimal established by the Board andany other banking authority to which the Agent is subject for EurocurrencyLiabilities (as defined in Regulation D). Such reserve percentages shall include any imposed pursuant to Regulation D.  Eurodollar Loans shall be deemed toconstitute Eurocurrency Liabilities and to be subject to such reserverequirements without benefits of or credit for proration, exemptions oroffsets.  Statutory Reserves shall beadjusted automatically on and as of the effective date of any change in anyreserve percentage.

 

“subsidiary” shallmean, with respect to any Person at any time, any corporation, partnership,limited liability company, association or other business entity of which EquityInterests representing more than 50% of the equity or more than 50% of theordinary voting power or, in the case of a partnership, more than 50% of thegeneral partnership interests are, at such time owned, controlled or held bysuch Person or by such Person and one or more subsidiaries of such Person.

 

“Subsidiary” shallmean any direct or indirect subsidiary of the Borrower.

 

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“Subsidiary Loan Party”shall mean each Subsidiary that is a party to the Collateral Agreement.

 

“Syndication Agent”shall mean JPMorgan Chase Bank, N.A

 

“Taxes” shall mean any present or future taxes, levies, imposts, duties,deductions, withholdings, assessments, fees or other charges imposed by anyGovernmental Authority, including any interest, additions to tax or penaltiesapplicable thereto.

 

“Total Commitment”shall mean at any time the aggregate amount of the Lenders’ Commitments at suchtime.

 

“Transactions” shallhave the meaning assigned to such term in Section 3.02.

 

“Transferee” shallmean any Eligible Assignee to whom a Lender shall have assigned all or any partof its Commitment or Loans or sold all or any part of its rights under thisAgreement, in each case in accordance with Section 9.04.

 

“Type”, when used inrespect of any Loan or Borrowing, shall refer to the Rate by reference to whichinterest on such Loan or on the Loans comprising such Borrowing isdetermined.  For purposes hereof, “Rate”shall mean the Adjusted LIBO Rate, the LIBO Rate, the Alternate Base Rate orthe Fixed Rate.

 

“Unfunded Liabilities”shall mean, on any date of determination, (a) in the case of MultiemployerPlans, the liability of the Borrower and the Subsidiaries if they were to incura complete withdrawal from each such Plan and (b) in the case of all otherPlans, the amount by which the present value of all benefit liabilities undereach Plan (based on assumptions used for purposes of Statement of FinancialAccounting Standards No. 87) exceeds the fair market value of the assetsof such Plan.

 

“U.S. Person” shallmean a “United States person” within the meaning of Section 7701(a)(30) ofthe Code.

 

“Withdrawal Liability”shall mean liability to a Multiemployer Plan as a result of a complete orpartial withdrawal from such Multiemployer Plan, as such terms are defined in Part Iof Subtitle E of Title IV of ERISA.

 

“Withholding Agent”shall mean any Loan Party and the Agent.

 

## SECTION 1.02.  Terms Generally.  The definitions of terms herein shall applyequally to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronounshall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and“including” shall be deemed to be followed by the phrase “withoutlimitation”.  The word “will” shall beconstrued to have the same meaning and effect as the word “shall”.  The words “asset” and “property” shall beconstrued to have the same meaning and effect and to refer to any and all real 

##  

## 29

## 

##  

## and personal, tangible and intangible assets and properties, includingcash, securities, accounts and contract rights. The word “law” shall be construed as referring to all statutes, rules,regulations, codes and other laws (including official rulings andinterpretations thereunder having the force of law), and all judgments, orders,writs and decrees, of all Governmental Authorities.  Unless the context requires otherwise, (a) anydefinition of or reference to any agreement, instrument or other document (includingthis Agreement) shall be construed as referring to such agreement, instrumentor other document as from time to time amended, supplemented or otherwisemodified (subject to any restrictions on such amendments, supplements ormodifications set forth herein), (b) any definition of or reference to anystatute, rule or regulation shall be construed as referring thereto asfrom time to time amended, supplemented or otherwise modified (including bysuccession of comparable successor laws), (c) any reference herein to anyPerson shall be construed to include such Person’s successors and assigns(subject to any restrictions on assignment set forth herein) and, in the caseof any Governmental Authority, any other Governmental Authority that shall havesucceeded to any or all functions thereof, (d) the words “herein”,“hereof” and “hereunder”, and words of similar import, shall be construed torefer to this Agreement in its entirety and not to any particular provisionhereof and (e) all references herein to Articles, Sections, Exhibits andSchedules shall be construed to refer to Articles and Sections of, and Exhibitsand Schedules to, this Agreement.  Allreferences herein to “the date hereof” or “the date of this Agreement” shall beinterpreted as references to the Restatement Effective Date.

##  

## SECTION 1.03.  Accounting Terms.  Except as otherwise expressly providedherein, all terms of an accounting or financial nature shall be construed inaccordance with GAAP, as in effect from time to time; provided that (a) forpurposes of determining compliance with any covenant set forth in Article VI,such terms shall be construed in accordance with GAAP as in effect on theRestatement Effective Date applied on a basis consistent with the applicationused in preparing the Borrower’s audited consolidated financial statementsreferred to in Section 3.05 and (b) for purposes of determiningcompliance with any covenant set forth in Article VI or determining the“Applicable Rate,” no effect shall be given to any election under Statement ofFinancial Accounting Standards No. 159, *TheFair Value Option for Financial Assets and Financial Liabilities*, tovalue any Indebtedness of the Borrower or any Subsidiary at “fair value”, asdefined therein.  In the event that anychange in GAAP materially affects any provision of this Agreement, the partieshereto agree that, at the request of the Borrower or the Required Lenders, theyshall negotiate in good faith in order to amend the affected provisions in sucha way as will restore the parties to their respective positions prior to suchchange, and, following any such request, until such amendment becomeseffective, the Borrower’s compliance with such provisions shall be determinedon the basis of GAAP as in effect immediately before such change in GAAP becameeffective.

##  

## 30

## 

#  

# ARTICLE II

#  

# THE CREDITS

#  

## SECTION 2.01.  Commitments.  Subject to the terms and conditions andrelying upon the representations and warranties herein set forth, each Lenderagrees, severally and not jointly, to make Standby Loans to the Borrower, atany time and from time to time on and after the date hereof and until theearlier of the Maturity Date and the termination of the Commitment of suchLender, in an aggregate principal amount that will not result in (a) theRevolving Credit Exposure of such Lender exceeding such Lender’s Commitment or (b) thesum of the Revolving Credit Exposures of all the Lenders plus theaggregate principal amount of all Competitive Loans outstanding at the timeexceeding the lesser of (i) the Total Commitment and (ii) theMaximum Availability at the time.  Withinthe foregoing limits, the Borrower may borrow, pay or prepay and reborrowhereunder, subject to the terms, conditions and limitations set forth herein.

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## SECTION 2.02.  Loans. (a)  Each Standby Loan shall be made as part of a Borrowingconsisting of Loans made by the Lenders ratably in accordance with theirCommitments.  Each Competitive Loan shallbe made in accordance with the procedures set forth in Section 2.03.  At the time of the commencement of eachInterest Period for any Eurodollar Standby Borrowing, such Borrowing shall bein an aggregate principal amount that is an integral multiple of $1,000,000 andnot less than $5,000,000. At the time that each ABR Borrowing is made, suchBorrowing shall be in an aggregate principal amount that is an integralmultiple of $1,000,000 and not less than $1,000,000; provided that anABR Borrowing may be in an aggregate principal amount that is equal to theentire unused balance of the Total Commitment. Each Competitive Borrowing shall be in an aggregate principal amountthat is an integral multiple of $1,000,000 and not less than $10,000,000.

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### (b) Each Competitive Borrowing shall be comprised entirely of EurodollarCompetitive Loans or Fixed Rate Loans, and each Standby Borrowing shall becomprised entirely of Eurodollar Standby Loans or ABR Loans, as theBorrower may request pursuant to Section 2.03 or 2.04, as applicable.  Each Lender may at its option make anyEurodollar Loan by causing any domestic or foreign branch or Affiliate of suchLender to make such Loan; provided that any exercise of such optionshall not affect the obligation of the Borrower to repay such Loan inaccordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time; providedthat the Borrower shall not be entitled to request any Borrowing which, ifmade, would result in an aggregate of more than 10 separate Standby Loans of anyLender being outstanding hereunder at any one time.  For purposes of the foregoing, Loans havingdifferent Interest Periods, regardless of whether they commence on the samedate, shall be considered separate Loans.

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### (c) Each Lender shall make each Loan to be made by it hereunder on the proposeddate thereof (i) in the case of a Eurodollar Loan, by wire transfer ofimmediately available funds to the Agent in New York, New York, notlater than 12:00 noon, New York City time, on such date and (ii) inthe case of an ABR Loan or 

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### a Fixed Rate Loan, by wiretransfer of immediately available funds to the Agent in New York,New York, not later than 3:00 p.m., New York City time, on suchdate, and the Agent shall promptly credit the amounts so received to thegeneral deposit account of the Borrower with the Agent. The failure of anyLender to make any Loan required to be made by it shall not relieve any otherLender of its obligations hereunder; provided that the Commitments andCompetitive Bids of the Lenders are several, and no Lender shall be responsiblefor any other Lender’s failure to make Loans as required hereby.  Unless the Agent shall have received noticefrom a Lender prior to the date of any Borrowing that such Lender will not makeavailable to the Agent such Lender’s portion of such Borrowing, the Agent mayassume that such Lender has made such portion available to the Agent on thedate of such Borrowing in accordance with this paragraph (c), and the Agentmay, in reliance upon such assumption, make available to the Borrower on suchdate a corresponding amount.  If and tothe extent that such Lender shall not have made such portion available to theAgent, such Lender and the Borrower severally agree to repay to the Agentforthwith on demand such corresponding amount together with interest thereon,for each day from the date such amount is made available to the Borrower untilthe date such amount is repaid to the Agent, at (i) in the case of theBorrower, the interest rate applicable at the time to the Loans comprising suchBorrowing and (ii) in the case of such Lender, the Federal Funds EffectiveRate.  If such Lender shall repay to theAgent such corresponding amount, such amount shall constitute such Lender’sLoan as part of such Borrowing for purposes of this Agreement.

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### (d) Notwithstanding any other provision of this Agreement, the Borrower shall notbe entitled to request any Borrowing if the Interest Period requested withrespect thereto would end after the Maturity Date.

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## SECTION 2.03.  Competitive Bid Procedure.  (a)  In order to request CompetitiveBids, the Borrower shall hand deliver or fax to the Agent a duly completed andexecuted Competitive Bid Request, to be received by the Agent (i) in thecase of a Eurodollar Competitive Borrowing, not later than 1:00 p.m., NewYork City time, four Business Days before the date of the requested CompetitiveBorrowing and (ii) in the case of a Fixed Rate Borrowing, not later than1:00 p.m., New York City time, one Business Day before the date of therequested Competitive Borrowing; provided that no Competitive Bids shallbe requested if, after giving effect to the Competitive Loans requestedthereby, the sum of the Revolving Credit Exposures of all the Lendersplus the aggregate principal amount of all Competitive Loans outstandingat the time would exceed the lesser of (i) the Total Commitment and (ii) theMaximum Availability at the time.  ACompetitive Bid Request that does not conform substantially to the format of Exhibit A-1may be rejected by the Agent in its sole discretion, and the Agent shallpromptly notify the Borrower of any such rejection.  Each request for Competitive Bids shall referto this Agreement and specify (x) whether the Competitive Borrowing thenbeing requested is to be a Eurodollar Competitive Borrowing or a Fixed RateBorrowing, (y) the date of such Competitive Borrowing (which shall be aBusiness Day) and the aggregate principal amount thereof, which shall be in aminimum principal amount of $10,000,000 and in an integral multiple of$1,000,000, and (z) the Interest Period with respect thereto (which maynot end after the Maturity Date). Promptly after its receipt of 

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## a Competitive Bid Request that is not rejected as aforesaid, the Agentshall invite the Lenders, by means of the notice in the form of Exhibit A-2,to bid, on the terms and conditions of this Agreement, to make CompetitiveLoans requested pursuant to such Competitive Bid Request.

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### (b) Each Lender may, in its sole discretion, make one or more Competitive Bids tothe Borrower responsive to a Competitive Bid Request.  Each Competitive Bid by a Lender shall be inthe form of Exhibit A-3 and must be received by the Agent (by handdelivery or fax) (i) in the case of a Eurodollar Competitive Borrowing,not later than 12:00 noon, New York City time, three Business Days beforethe date of the requested Competitive Borrowing and (ii) in the case of aFixed Rate Borrowing, not later than 12:00 noon, New York City time, onthe day of the requested Competitive Borrowing. Multiple bids will be accepted by the Agent.  Competitive Bids that do not conformsubstantially to the format of Exhibit A-3 may be rejected by the Agentafter conferring with, and upon the instruction of, the Borrower, and the Agentshall notify the Lender making such nonconforming Competitive Bids of suchrejection as soon as practicable.  EachCompetitive Bid shall refer to this Agreement and specify (x) the principalamount (which shall be in a minimum principal amount of $10,000,000 and in anintegral multiple of $1,000,000 and which may equal the entire principal amountof the requested Competitive Borrowing) of the Competitive Loan or Loans thatthe Lender is willing to make to the Borrower, (y) the Competitive BidRate or Rates at which the Lender is prepared to make the Competitive Loan orLoans and (z) the Interest Period with respect thereto.  A Competitive Bid submitted by a Lenderpursuant to this paragraph (b) shall be irrevocable.

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### (c) With respect to each Competitive Bid Request, the Agent shall promptly notifythe Borrower by fax of all the Competitive Bids made, the Competitive Bid Rateand the principal amount of each Competitive Loan in respect of which aCompetitive Bid was made and the identity of the Lender that made eachCompetitive Bid.  The Agent shall send acopy of all Competitive Bids to the Borrower for its records as soon aspracticable after completion of the bidding process set forth in this Section.

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### (d) The Borrower may, in its sole and absolute discretion, subject only to theprovisions of this paragraph (d), accept or reject any CompetitiveBid.  The Borrower shall notify the Agentby telephone, confirmed in writing by hand delivery or fax of a duly completedand executed Competitive Bid Accept/Reject Letter, whether and to what extentit has decided to accept or reject any of or all the Competitive Bids madepursuant to any Competitive Bid Request (x) in the case of a Eurodollar CompetitiveBorrowing, not later than 1:00 p.m., New York City time, three BusinessDays before the date of the requested Competitive Borrowing, and (y) inthe case of a Fixed Rate Borrowing, not later than 1:00 p.m., New YorkCity time, on the day of the requested Competitive Borrowing; providedthat, with respect to any Competitive Bid Request, (i) the failure by theBorrower to give such notice shall be deemed to be a rejection of all theCompetitive Bids made pursuant thereto, (ii) the Borrower shall not accepta Competitive Bid made at a particular Competitive Bid Rate if it has decidedto reject a Competitive Bid made at a lower Competitive Bid Rate, (iii) theaggregate 

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### principal amount of theCompetitive Loans offered pursuant to the Competitive Bids accepted by theBorrower shall not exceed the principal amount specified in the Competitive BidRequest, (iv) if the Borrower shall accept a Competitive Bid orCompetitive Bids made at a particular Competitive Bid Rate but the amount ofsuch bid or bids shall cause the total amount of Competitive Bids to beaccepted by the Borrower to exceed the amount specified in the Competitive BidRequest, then the Borrower shall accept a portion of such bid or bids in anamount equal to the amount specified in the Competitive Bid Request less theamount of all other Competitive Bids accepted with respect to such CompetitiveBid Request, which acceptance, in the case of multiple bids at such CompetitiveBid Rate, shall be made pro rata in accordance with the amount of each such bidat such Competitive Bid Rate, (v) the Borrower shall not accept aCompetitive Bid or Competitive Bids, or a portion of such bid or bids, if,after giving effect thereto, the sum of the Revolving Credit Exposures of allthe Lenders and the aggregate principal amount of all Competitive Loansoutstanding at the time shall exceed the lesser of (x) the TotalCommitment and (y) the Maximum Availability at the time and (vi) exceptpursuant to clauses (iv) and (v) above, no Competitive Bid shallbe accepted for a Competitive Loan unless such Competitive Loan is in a minimumprincipal amount of $10,000,000 and an integral multiple of $1,000,000; providedfurther that if a Competitive Loan must be in an amount less than$10,000,000 because of the provisions of clause (iv) or (v) above,such Competitive Loan may be for a minimum of $1,000,000 or any integralmultiple thereof, and in calculating the pro rata allocation of acceptances ofportions of multiple bids at a particular Competitive Bid Rate pursuant toclause (iv) above, the amounts shall be rounded to integral multiplesof $1,000,000 in a manner which shall be in the discretion of theBorrower.  A notice given by the Borrowerpursuant to this paragraph (d) shall be irrevocable.

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### (e) The Agent shall promptly notify each bidding Lender whether or not itsCompetitive Bid has been accepted (and if so, in what amount and at whatCompetitive Bid Rate), and each bidding Lender whose Competitive Bid has beenaccepted will thereupon become bound, subject to the other applicableconditions hereof, to make the Competitive Loan to the extent its CompetitiveBid has been accepted.

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### (f) A Competitive Bid Request shall not be made within five Business Days after thedate of any previous Competitive Bid Request.

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### (g) If the Agent shall elect to submit a Competitive Bid in its capacity as aLender, it shall submit such bid directly to the Borrower one quarter of anhour earlier than the latest time by which the other Lenders are required tosubmit their bids to the Agent pursuant to paragraph (b) above.

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### (h) All notices required by this Section shall be given in accordance with Section 9.01.

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## SECTION 2.04.  Standby Borrowing Procedure.  In order to request a Standby Borrowing, theBorrower shall hand deliver or fax to the Agent a duly completed 

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## and executed Standby Borrowing Request (a) in the case of aEurodollar Standby Borrowing, not later than 1:00 p.m., New York Citytime, three Business Days before the date of the requested Standby Borrowingand (b) in the case of an ABR Borrowing, not later than 1:00 p.m.,New York City time, on the day of the requested Standby Borrowing.  Each such request shall be irrevocable andshall specify (i) whether the Borrowing then being requested is to be aEurodollar Standby Borrowing or an ABR Borrowing; (ii) the date ofsuch Standby Borrowing (which shall be a Business Day) and the amount thereof;and (iii) if such Borrowing is to be a Eurodollar Standby Borrowing, theInterest Period with respect thereto.  Ifno election as to the Type of Standby Borrowing is specified in any suchrequest, then the requested Standby Borrowing shall be an ABR Borrowing.  If no Interest Period with respect to anyEurodollar Standby Borrowing is specified in any such request, then theBorrower shall be deemed to have selected an Interest Period of one month’sduration. The Agent shall promptly advise the Lenders of any request givenpursuant to this Section and of each Lender’s portion of the requestedBorrowing.

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## SECTION 2.05.  Standby Interest Elections.  (a)  Each Standby Borrowing initiallyshall be of the Type specified in the applicable Standby Borrowing Request and,in the case of a Eurodollar Standby Borrowing, shall have an initial InterestPeriod as specified in such Standby Borrowing Request.  Thereafter, the Borrower may elect to convertsuch Standby Borrowing to a Standby Borrowing of a different Type or tocontinue such Standby Borrowing and, in the case of a Eurodollar StandbyBorrowing, may elect Interest Periods therefor, all as provided in thisSection.  The Borrower may electdifferent options with respect to different portions of the affected StandbyBorrowing, in which case each such portion shall be allocated ratably among theLenders holding the Standby Loans comprising such Standby Borrowing, and theStandby Loans comprising each such portion shall be considered a separateStandby Borrowing.  This Section shallnot apply to Competitive Borrowings, which may not be converted or continued.

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### (b) To make an election pursuant to this Section, the Borrower shall notify theAgent of such election (each, an “Interest Election Request”) bytelephone by the time that a Standby Borrowing Request would be required under Section 2.04if the Borrower were requesting a Standby Borrowing of the Type resulting fromsuch election to be made on the effective date of such election.  Each such telephonic Interest ElectionRequest shall be irrevocable and shall be confirmed promptly by hand deliveryor fax to the Agent of a written Interest Election Request in a form approvedby the Agent and signed by the Borrower.

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### (c) Each telephonic and written Interest Election Request shall specify thefollowing information in compliance with Section 2.02:

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#### (i) the Standby Borrowing to which such Interest Election Request applies and, ifdifferent options are being elected with respect to different portions thereof,the portions thereof to be allocated to each resulting Standby Borrowing (inwhich case the information to be specified pursuant to clauses (iii) and (iv) belowshall be specified for each resulting Standby Borrowing);

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#### (ii) the effective date of the election made pursuant to such Interest ElectionRequest, which shall be a Business Day;

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#### (iii) whether the resulting Standby Borrowing is to be an ABR Borrowing or aEurodollar Standby Borrowing; and

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#### (iv) if the resulting Standby Borrowing is to be a Eurodollar Standby Borrowing, theInterest Period to be applicable thereto after giving effect to such election,which shall be a period contemplated by the definition of the term “InterestPeriod”.

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If any such Interest ElectionRequest requests a Eurodollar Standby Borrowing but does not specify anInterest Period, then the Borrower shall be deemed to have selected an InterestPeriod of one month’s duration.

 

### (d) Promptly following receipt of an Interest Election Request, the Agent shalladvise each Lender of the details thereof and of such Lender’s portion of eachresulting Standby Borrowing.

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### (e) If the Borrower fails to deliver a timely Interest Election Request withrespect to a Eurodollar Standby Borrowing prior to the end of the InterestPeriod applicable thereto, then, unless such Standby Borrowing is repaid asprovided herein, at the end of such Interest Period such Borrowing shall beconverted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Defaulthas occurred and is continuing and the Agent, at the request of the RequiredLenders, so notifies the Borrower, then, so long as an Event of Default iscontinuing (i) no outstanding Standby Borrowing may be converted to orcontinued as a Eurodollar Standby Borrowing and (ii) unless repaid, eachEurodollar Standby Borrowing shall be converted to an ABR Borrowing at the endof the Interest Period applicable thereto.

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## SECTION 2.06.  Fees. (a)  The Borroweragrees to pay to the Agent for the account of each Lender a commitment fee (the“Commitment Fee”), which shall accrue at the Applicable Rate on thedaily unused amount of the Commitment of such Lender during the period from andincluding the Restatement Effective Date to but excluding the date on whichsuch Commitment terminates.  AccruedCommitment Fees shall be payable in arrears on the last day of March, June, September andDecember of each year and on the date on which the Commitments terminate,commencing on the first such date to occur after the Restatement EffectiveDate.  All Commitment Fees shall becomputed on the basis of a year of 360 days and shall be payable for the actualnumber of days elapsed (including the first day but excluding the lastday).  For purposes of computing CommitmentFees, (i) the Commitment of a Lender shall be deemed to be used to theextent of such Lender’s Revolving Credit Exposure and (ii) the outstandingCompetitive Loans of any Lender shall be disregarded.

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### (b) The Borrower agrees to pay the Agent, for its own account, the fees (the “Agent’sFees”) at the times and in the amounts agreed by the Borrower in the FeeLetter.

 

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### (c) All Fees shall be paid on the dates due, in immediately available funds, to theAgent for distribution, if and as appropriate, among the Lenders.  Once paid, none of the Fees shall berefundable under any circumstances absent manifest error.

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## SECTION 2.07.  Repayment of Loans; Evidence of Debt.  (a)  The Borrower hereby unconditionallypromises to pay (i) on the Maturity Date to the Agent for the account ofeach Lender the then unpaid principal amount of each Standby Loan and (ii) onthe last day of the Interest Period applicable thereto to the Agent for theapplicable Lender(s) the then unpaid principal amount of each CompetitiveLoan.

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### (b) Each Lender shall maintain in accordance with its usual practice an account oraccounts evidencing the indebtedness to such Lender resulting from each Loanmade by such Lender from time to time, including the amounts of principal andinterest payable and paid to such Lender from time to time under thisAgreement.  The Agent shall maintainaccounts in which it will record (i) the amount of each Loan madehereunder, the Type of each Loan made and the Interest Period applicablethereto, (ii) the amount of any principal or interest due and payable orto become due and payable from the Borrower to each Lender hereunder and (iii) theamount of any sum received by the Agent hereunder from the Borrower and eachLender’s share thereof.  The entries madein the accounts maintained pursuant to this Section shall, to the extentpermitted by applicable law, be prima facie evidence of the existence andamounts of the obligations therein recorded; provided, however,that the failure of any Lender or the Agent to maintain such accounts or anyerror therein shall not in any manner affect the obligations of the Borrower torepay the Loans in accordance with their terms or cause the Borrower’sobligations to be greater than they would have been absent such failure orerror.

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### (c) Any Lender may request that Loans made by it to the Borrower be evidenced by apromissory note of the Borrower.  In suchevent, the Borrower shall prepare, execute and deliver to such Lender apromissory note payable to the order of such Lender (or, if requested by suchLender, to such Lender and its registered assigns) and in a form approved bythe Agent.  Thereafter, the Loansevidenced by such promissory note and interest thereon shall at all times(including after assignment pursuant to Section 9.04) be represented byone or more promissory notes in such form payable to the order of the payeenamed therein (or, if such promissory note is a registered note, to such payeeand its registered assigns).

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## SECTION 2.08.  Interest on Loans.  (a)  Subject to Section 2.09, theLoans comprising each Eurodollar Borrowing shall bear interest (computed on thebasis of the actual number of days elapsed over a year of 360 days) at a rateper annum equal to (i) in the case of each Eurodollar Standby Loan, theAdjusted LIBO Rate for the Interest Period in effect for such Borrowing plusthe Applicable Rate, and (ii) in the case of each Eurodollar CompetitiveLoan, the LIBO Rate for the Interest Period in effect for such Borrowing plusthe Margin offered by the Lender making such Loan and accepted by the Borrowerpursuant to Section 2.03.  Accruedinterest on each Eurodollar Loan shall be payable in arrears on each InterestPayment Date for such Loan.  Each ReferenceBank 

 

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## agrees upon the request of the Agent to furnish to the Agent timelyinformation for the purpose of determining the LIBO Rate and the Adjusted LIBORate.  If any one or more of the ReferenceBanks shall not furnish such timely information to the Agent for the purpose ofdetermining any such interest rate, the Agent shall determine such interestrate on the basis of timely information furnished by the remaining ReferenceBanks.

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### (b) Subject to Section 2.09, the Loans comprising each ABR Borrowingshall bear interest (computed on the basis of the actual number of days elapsedover a year of 365 or 366 days, as the case may be) at a rate per annumequal to the Alternate Base Rate plus the Applicable Rate.  Accrued interest on each ABR Loan shall bepayable in arrears on each Interest Payment Date for such Loan.  The Alternate Base Rate shall be determinedby the Agent, and such determination shall be conclusive absent manifest error.

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### (c) Subject to Section 2.09, each Fixed Rate Loan shall bear interest at arate per annum (computed on the basis of the actual number of days elapsed overa year of 360 days) equal to the fixed rate of interest offered by theLender making such Loan and accepted by the Borrower pursuant to Section 2.03.  Accrued interest on each Fixed Rate Loanshall be payable in arrears on each Interest Payment Date.

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## SECTION 2.09.  Default Interest.  Notwithstanding anything to the contraryherein, (a) upon the occurrence and during the continuance of an Event ofDefault and, except where an Event of Default shall have occurred and becontinuing under clause (b), (c), (g) or (h) of Article VII,after receipt of a request therefor from the Agent or the Required Lenders, theBorrower shall pay interest on the unpaid principal amount of each StandbyLoan, payable in arrears on the dates referred to in Section 2.08, at arate per annum (computed on the basis of the actual number of days elapsed overa year of 360 days) equal at all times to 2% per annum above the rate per annumrequired to be paid on such Standby Loan pursuant to Section 2.08(a) or2.08(b), as applicable, and (b) to the fullest extent permitted by law,the Borrower shall pay interest on the amount of any interest, fee or otheramount payable hereunder (other than the principal of any Standby Loan) that isnot paid when due, from the date such amount shall be due until such amountshall be paid in full, payable in arrears on the date such amount shall be paidin full and on demand, at a rate per annum (computed on the basis of the actualnumber of days elapsed over a year of 365 or 366 days, as the case may be)equal at all times to 2% per annum above the rate per annum required to be paidon ABR Loans pursuant to Section 2.08(b).

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## SECTION 2.10.  Alternate Rate of Interest.  In the event, and on each occasion, that onthe day two Business Days prior to the commencement of any Interest Period fora Eurodollar Borrowing the Agent shall have determined that dollar deposits inthe principal amounts of the Eurodollar Loans comprising such Borrowing are notgenerally available in the London interbank market, or that the rates at whichsuch dollar deposits are being offered will not adequately and fairly reflectthe cost to any Lender of making or maintaining its Eurodollar Loan during suchInterest Period, or that reasonable means do not exist for ascertaining theAdjusted LIBO Rate or the LIBO Rate, the Agent shall, as soon as practicablethereafter, give written or fax notice of such determination to 

 

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## the Borrower and the Lenders.  Inthe event of any such determination, until the Agent shall have advised theBorrower and the Lenders that the circumstances giving rise to such notice nolonger exist, (a) any request by the Borrower for a Eurodollar CompetitiveBorrowing pursuant to Section 2.03 shall be of no force and effect andshall be denied by the Agent and (b) any request by the Borrower for aEurodollar Standby Borrowing pursuant to Section 2.04 shall be deemed tobe a request for an ABR Borrowing. In the event of any such determination, the Lenders shall negotiate withthe Borrower, at its request, as to the interest rate which the Loans comprisingsuch an ABR Borrowing shall bear; provided that such Loans shall bearinterest as provided in Section 2.08(b) pending the execution by theBorrower and each Lender of a written agreement providing for a differentinterest rate.  Each determination by theAgent hereunder shall be conclusive absent manifest error.

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## SECTION 2.11.  Termination and Reduction of Commitments.  (a)  Unless previously terminated, theCommitments shall terminate on the Maturity Date.

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### (b) Upon at least three Business Days’ prior irrevocable written or fax notice tothe Agent, the Borrower may at any time in whole permanently terminate, or fromtime to time in part permanently reduce, without penalty but subject to Section 2.15,the Total Commitment; provided that (i) each partial reduction ofthe Total Commitment shall be in an integral multiple of $1,000,000 and in aminimum principal amount of $5,000,000 and (ii) no such termination orreduction shall be made if, after giving effect to any concurrent prepayment ofthe Loans in accordance with Section 2.12, the sum of the Revolving CreditExposures of all the Lenders plus the aggregate principal amount of allCompetitive Loans outstanding at the time would exceed the lesser of (x) theTotal Commitment and (y) the Maximum Availability at the time.

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### (c) In the event and on any occasion that any Net Proceeds are received by or onbehalf of the Borrower or any Subsidiary in respect of any sale, transfer orother disposition of Equity Interests in INTECH or Perkins pursuant to Section 6.04(c)(iv),the Total Commitment shall, on the second Business Day immediately followingthe day such Net Proceeds are received, be automatically permanently reduced byan amount equal to the product of (i) the Applicable Percentage and (ii) theTotal Commitment as in effect immediately prior to such reduction (and theBorrower shall make the prepayment, if any, required to be made as a result ofsuch reduction pursuant to Section 2.12(c))

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### (d) Each reduction in the Total Commitment under this Section 2.11 shall bemade ratably among the Lenders in accordance with their respectiveCommitments.  The Borrower shall pay tothe Agent for the account of the Lenders, on the date of each termination orreduction of the Total Commitment under this Section 2.11, the CommitmentFees on the amount of the Commitments so terminated or reduced accrued throughthe date of such termination or reduction.

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## SECTION 2.12.  Prepayment.  (a)  The Borrower shall have the right,at any time and from time to time, to prepay any Standby Borrowing, in whole orin part, 

 

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## upon giving written or fax notice (or telephone notice promptlyconfirmed by written or fax notice) to the Agent prior to (i) 1:00 p.m.,New York City time, two Business Days prior to the date of prepayment, in thecase of Eurodollar Standby Loans, and (ii) before 1:00 p.m., New YorkCity time, on the Business Day of the date of prepayment, in the case of ABRLoans; provided that each partial prepayment shall be in an amount whichis an integral multiple of $1,000,000 and not less than (A) $5,000,000 inthe case of a Eurodollar Standby Borrowing and (B) $1,000,000 in the caseof an ABR Borrowing or, if less, the aggregate principal amount of such StandbyBorrowing.  The Borrower shall not have theright to prepay any Competitive Borrowing.

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### (b) In the event and on each occasion that the sum of the Revolving CreditExposures of all the Lenders plus the aggregate principal amount of allCompetitive Loans outstanding exceeds, on any day, the Maximum Availability onsuch day, the Borrower shall, not later than the immediately following BusinessDay, (i) prepay Standby Borrowings in an amount equal to the lesser of theaggregate principal amount of the Standby Borrowings then outstanding and theamount of such excess and (ii) to the extent the amount of such excessshall exceed the aggregate principal amount of the Standby Borrowings thenoutstanding, prepay Competitive Borrowings in an amount sufficient to eliminatesuch remaining excess.

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### (c) In the event and on each occasion that the Total Commitment is reduced pursuantto Section 2.11, and, following such reduction, the sum of the RevolvingCredit Exposures of all the Lenders plus the aggregate principal amount of allCompetitive Loans outstanding exceeds the Total Commitment, the Borrowershall, on such day, (i)  prepay Standby Borrowings in an amount equal tothe lesser of the aggregate principal amount of the Standby Borrowings thenoutstanding and the amount of such excess and (ii) to the extent theamount of such excess shall exceed the aggregate principal amount of theStandby Borrowings then outstanding, prepay Competitive Borrowings in an amountsufficient to eliminate such remaining excess. In the event of a termination of all of the Commitments, the Borrowershall repay or prepay all the outstanding Loans on the date of suchtermination.

###  

### (d) In the event and on any occasion that any Net Proceeds are received by or onbehalf of the Borrower or any Subsidiary in respect of (i) any issuance ofpreferred Equity Interests in or other preferred securities of the Borrower, (ii) anysale, transfer or other disposition of Equity Interests in INTECH or Perkinspursuant to Section 6.04(c)(iv) or (iii) any sale, transfer orother disposition of securities of Stanfield Victoria Funding LLC pursuant to Section 6.04(c)(v),the Borrower shall (A) within two Business Days after such Net Proceedsare received, prepay Standby Borrowings in an aggregate amount equal to thelesser of the aggregate principal amount of the Standby Borrowings thenoutstanding and the amount of such Net Proceeds and (B) solely in the caseof any event described in clause (i) or (ii) above, to the extent theamount of such Net Proceeds shall exceed the aggregate principal amount of theStandby Borrowings then outstanding, within 90 Business Days after such NetProceeds are received, prepay (or cause any Subsidiary to prepay) otherIndebtedness of the Borrower or any Subsidiary in an aggregate amount equal tothe 

###  

### 40

### 

###  

### lesser of the aggregateprincipal amount of all such other Indebtedness then outstanding and 75% ofsuch excess.

###  

### (e) Each notice of prepayment shall specify the prepayment date and the principalamount of each Standby Borrowing (or portion thereof) to be prepaid, shall beirrevocable and shall commit the Borrower to prepay such Standby Borrowing (orportion thereof) by the amount stated therein on the date stated therein.  All prepayments under this Section shallbe subject to Section 2.15, but shall otherwise be without premium orpenalty.  All prepayments under this Section shallbe accompanied by accrued interest on the principal amount being prepaid to thedate of payment.

###  

## SECTION 2.13.  Reserve Requirements; Change in Circumstances.  (a)  Notwithstanding any other provisionherein, if after the Closing Date any change in applicable law or regulation orin the interpretation or administration thereof by any Governmental Authoritycharged with the interpretation or administration thereof (whether or nothaving the force of law) shall change the basis of taxation of payments to anyLender of the principal of or interest on any Eurodollar Loan or Fixed RateLoan made by such Lender or any Fees or other amounts payable hereunder (otherthan changes in respect of Taxes imposed on the overall net income of suchLender by the jurisdiction in which such Lender has its principal or applicablelending office or by any political subdivision or taxing authority therein), orshall impose, modify or deem applicable any reserve, special deposit or similarrequirement against assets of, deposits with or for the account of or creditextended by such Lender (except any such reserve requirement which is reflectedin the Adjusted LIBO Rate), or shall impose on such Lender or the Londoninterbank market any other condition affecting this Agreement or any EurodollarLoan or Fixed Rate Loan made by such Lender, and the result of any of theforegoing shall be to increase the direct cost to such Lender of making ormaintaining any Eurodollar Loan or Fixed Rate Loan or to reduce the amount ofany sum received or receivable by such Lender hereunder (whether of principal,interest or otherwise) by an amount reasonably deemed by such Lender to bematerial, then the Borrower will pay to such Lender upon demand such additionalamount or amounts as will compensate such Lender for such additional costsincurred or reduction suffered. Notwithstanding the foregoing, no Lender shall be entitled to requestcompensation under this paragraph with respect to any Competitive Loan if itshall have been aware of the change giving rise to such request at the time ofsubmission of the Competitive Bid pursuant to which such Competitive Loan shallhave been made.

##  

### (b) If any Lender shall have determined that the applicability of any law, rule,regulation or guideline adopted pursuant to or arising out of the July 1988report of the Basle Committee on Banking Regulations and Supervisory Practicesentitled “International Convergence of Capital Measurement and CapitalStandards”, or the adoption after the Closing Date of any other law, rule,regulation or guideline regarding capital adequacy, or any change in any of theforegoing or in the interpretation or administration of any of the foregoing byany Governmental Authority, central bank or comparable agency charged with theinterpretation or administration thereof, or compliance by any Lender (or anylending office of such Lender) or any Lender’s holding company with any requestor directive regarding 

 

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###  

### capital adequacy (whether ornot having the force of law) of any such Governmental Authority, central bankor comparable agency, has or would have the effect of reducing the rate ofreturn on such Lender’s capital or on the capital of such Lender’s holdingcompany, if any, as a consequence of this Agreement or the Loans made by suchLender pursuant hereto to a level below that which such Lender or such Lender’sholding company could have achieved but for such applicability, adoption,change or compliance (taking into consideration such Lender’s policies and thepolicies of such Lender’s holding company with respect to capital adequacy) byan amount reasonably deemed by such Lender to be material, then from time totime the Borrower shall pay to such Lender such additional amount or amounts aswill compensate such Lender or such Lender’s holding company for any suchreduction suffered.

###  

### (c) Failure on the part of any Lender to demand compensation for any increasedcosts or reduction in amounts received or receivable or reduction in return oncapital with respect to any period shall not constitute a waiver of suchLender’s right to demand compensation with respect to such period or any otherperiod.  The protection of this Section shallbe available to each Lender regardless of any possible contention of theinvalidity or inapplicability of the law, rule, regulation, guideline or otherchange or condition which shall have occurred or been imposed.

###  

## SECTION 2.14.  Change in Legality.  (a)  Notwithstanding any other provisionherein, if any change in any law or regulation or in the interpretation thereofby any Governmental Authority charged with the administration or interpretationthereof shall make it unlawful for any Lender to make or maintain anyEurodollar Loan or to give effect to its obligations as contemplated herebywith respect to any Eurodollar Loan, then, by written notice to the Borrowerand to the Agent, such Lender may:

##  

#### (i) declare that Eurodollar Loans will not thereafter be made by such Lenderhereunder, whereupon such Lender shall not submit a Competitive Bid in responseto a request for Eurodollar Competitive Loans and any request by the Borrowerfor a Eurodollar Standby Borrowing shall, as to such Lender only, be deemed arequest for an ABR Loan unless such declaration shall be subsequentlywithdrawn; and

####  

#### (ii) require that all outstanding Eurodollar Loans made by it be converted to ABRLoans, in which event all such Eurodollar Loans shall be automaticallyconverted to ABR Loans as of the effective date of such notice as provided inparagraph (b) below.

####  

In the event any Lendershall exercise its rights under clause (i) or (ii) above, and (x) allpayments and prepayments of principal which would otherwise have been appliedto repay the Eurodollar Loans that would have been made by such Lender or theconverted Eurodollar Loans of such Lender shall instead be applied to repay theABR Loans made by such Lender in lieu of, or resulting from the conversion of,such Eurodollar Loans and (y) such Lender shall negotiate with theBorrower, at its request, as to the interest rate which such ABR Loans shallbear; provided that such Loans shall bear interest as 

 

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provided in Section 2.08(b) pendingthe execution by the Borrower and such Lender of a written agreement providingfor a different interest rate.

 

### (b) For purposes of this Section, a notice to the Borrower by any Lender shall beeffective as to each Eurodollar Loan, if lawful, on the last day of theInterest Period currently applicable to such Eurodollar Loan; in all othercases such notice shall be effective on the date of receipt by the Borrower.

###  

## SECTION 2.15.  Indemnity.  The Borrower shall indemnify each Lenderagainst any loss (other than loss of profits) or expense which such Lender maysustain or incur as a consequence of (a) any failure by the Borrower tofulfill on the date of any borrowing hereunder the applicable conditions setforth in Article IV, (b) any failure by the Borrower to borrow or torefinance or continue any Loan hereunder, for any reason other than a defaultby such Lender, after irrevocable notice of such borrowing, refinancing orcontinuation has been given pursuant to Section 2.03, 2.04 or 2.05, (c) anypayment, prepayment or conversion of a Eurodollar Loan or Fixed Rate Loanrequired by any other provision of this Agreement or otherwise made or deemedmade on a date other than the last day of the Interest Period applicablethereto, (d) any default in payment or prepayment by the Borrower of theprincipal amount of any Loan or any part thereof or interest accrued thereon,as and when due and payable (at the due date thereof, whether by scheduled maturity,acceleration, irrevocable notice of prepayment or otherwise) or (e) theoccurrence of any Event of Default, including, in each such case, any loss(other than loss of profits) or reasonable expense sustained or incurred or tobe sustained or incurred in liquidating or employing deposits from thirdparties acquired to effect or maintain such Loan or any part thereof as aEurodollar Loan or Fixed Rate Loan.  Suchloss or reasonable expense shall include an amount equal to the excess, if any,as reasonably determined by such Lender, of (i) its cost of obtaining thefunds for the Loan being paid, prepaid, converted or not borrowed (assumed tobe the Adjusted LIBO Rate or, in the case of a Fixed Rate Loan, the fixed rateof interest applicable thereto) for the period from the date of such payment,prepayment or failure to borrow to the last day of the Interest Period for suchLoan (or, in the case of a failure to borrow, the Interest Period for such Loanwhich would have commenced on the date of such failure) over (ii) theamount of interest (as reasonably determined by such Lender) that would berealized by such Lender in reemploying the funds so paid, prepaid or notborrowed for such period or Interest Period, as the case may be.  This Section 2.15 shall not apply withrespect to Taxes, other than Taxes that represent losses or damages arisingfrom any non-Tax claim.

##  

## SECTION 2.16.  Pro Rata Treatment.  Except as required under Section 2.14,each Standby Borrowing, each payment or prepayment of principal of any StandbyBorrowing, each payment of interest on the Standby Loans, each payment of theCommitment Fees, each reduction of the Commitments and each refinancing of anyBorrowing with a Standby Borrowing of any Type, shall be allocated pro rataamong the Lenders in accordance with their respective Commitments (or, if suchCommitments shall have expired or been terminated, in accordance with therespective principal amounts of their outstanding Standby Loans).  Each payment of principal of any CompetitiveBorrowing shall be allocated pro rata among the Lenders participating in suchBorrowing in accordance with the respective principal amounts of theiroutstanding Competitive 

 

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## Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocatedpro rata among the Lenders participating in such Borrowing in accordance withthe respective amounts of accrued and unpaid interest on their outstandingCompetitive Loans comprising such Borrowing. For purposes of determining the available Commitments of the Lenders atany time, each outstanding Competitive Borrowing shall be deemed to haveutilized the Commitments of the Lenders (including those Lenders which shallnot have made Loans as part of such Competitive Borrowing) pro rata inaccordance with such respective Commitments, except as set forth in Section 2.06(a).  Each Lender agrees that in computing suchLender’s portion of any Borrowing to be made hereunder, the Agent may, in itsdiscretion, round each Lender’s percentage of such Borrowing to the next higheror lower whole dollar amount.

##  

## SECTION 2.17.  Sharing of Setoffs.  Each Lender agrees that if it shall, throughthe exercise of a right of banker’s lien, setoff or counterclaim against theBorrower, or pursuant to a secured claim under Section 506 ofTitle 11 of the United States Code or other security or interest arisingfrom, or in lieu of, such secured claim, received by such Lender under anyapplicable bankruptcy, insolvency or other similar law or otherwise, or by anyother means, obtain payment (voluntary or involuntary) in respect of anyStandby Loan or Loans as a result of which the unpaid principal portion of theStandby Loans of such Lender shall be proportionately less than the unpaidprincipal portion of the Standby Loans of any other Lender, it shall be deemedsimultaneously to have purchased from such other Lender at face value, andshall promptly pay to such other Lender the purchase price for, a participationin the Standby Loans of such other Lender, so that the aggregate unpaidprincipal amount of the Standby Loans and participations in the Standby Loansheld by each Lender shall be in the same proportion to the aggregate unpaidprincipal amount of all Standby Loans then outstanding as the principal amountof its Standby Loans prior to such exercise of banker’s lien, setoff orcounterclaim or other event was to the principal amount of all Standby Loansoutstanding prior to such exercise of banker’s lien, setoff or counterclaim orother event; provided, however, that, if any such purchase orpurchases or adjustments shall be made pursuant to this Section and thepayment giving rise thereto shall thereafter be recovered, such purchase orpurchases or adjustments shall be rescinded to the extent of such recovery andthe purchase price or prices or adjustment restored without interest.  The Borrower expressly consents to theforegoing arrangements and agrees that any Lender holding a participationpursuant to the foregoing arrangements deemed to have been so purchased mayexercise any and all rights of banker’s lien, setoff or counterclaim withrespect to any and all moneys owing by the Borrower to such Lender by reasonthereof as fully as if such Lender had made a Standby Loan directly to theBorrower in the amount of such participation.

##  

## SECTION 2.18.  Payments.  (a)  The Borrower shall make eachpayment (including principal of or interest on any Borrowing or any Fees orother amounts) hereunder and under any other Loan Document not later than 1:00 p.m.,New York City time, on the date when due in dollars to the Agent at its officesat Citi Global Loans, 1615 Brett Road, OPS 3, New Castle, DE 19720, ABA 021 0000 89, Account No. 36852248, Attention: Mark Rosenthal, in immediatelyavailable funds.

 

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### (b) Whenever any payment (including principal of or interest on any Borrowing orany Fees or other amounts) hereunder or under any other Loan Document shallbecome due, or otherwise would occur, on a day that is not a Business Day, suchpayment may be made on the next succeeding Business Day, and such extension oftime shall in such case be included in the computation of interest or Fees, ifapplicable.

 

### (c) In the event that any financial statements delivered under Section 5.04(a) or5.04(b), or any certificate delivered under Section 5.04(c), shall proveto have been materially inaccurate (regardless of whether any Commitments arein effect or any amounts are outstanding hereunder when such inaccuracy isdiscovered), and such inaccuracy shall have resulted in the payment of anyinterest or fees at rates lower than those that were in fact applicable for anyperiod (based on the actual Leverage Ratio), the Borrower shall pay to theAgent, for distribution to the Lenders (or former Lenders) as their interestsmay appear, the accrued interest or fees that should have been paid but werenot paid as a result of such misstatement.

###  

## SECTION 2.19.  Taxes. (a)  Each payment by any Loan Party under any Loan Document shallbe made without withholding for any Taxes, unless such withholding is requiredby any law, as modified by the practice then in effect of any GovernmentalAuthority.  If any Withholding Agentdetermines, in its sole discretion exercised in good faith, that it is sorequired to withhold Taxes, then such Withholding Agent may so withhold andshall timely pay the full amount of withheld Taxes to the relevant GovernmentalAuthority in accordance with applicable law. If such Taxes are Indemnified Taxes, then the amount payable by theapplicable Loan Party shall be increased as necessary so that, net of suchwithholding (including such withholding applicable to additional amountspayable under this Section 2.19), the applicable Recipient receives theamount it would have received had no such withholding been made.

##  

### (b) The Loan Parties shall timely pay any Other Taxes to the relevant GovernmentalAuthority in accordance with applicable law.

###  

### (c) Within 30 days after any payment of Indemnified Taxes by a Loan Party to aGovernmental Authority, such Loan Party shall deliver to the Agent at itsaddress referred to in Section 9.01 the original or a certified copy of areceipt issued by such Governmental Authority evidencing such payment, a copyof the return reporting such payment or other evidence of such paymentreasonably satisfactory to the Agent.

###  

### (d) The Loan Parties shall severally indemnify each Recipient for the full amountof any Indemnified Taxes payable by such Recipient with respect to any LoanDocument or any payment by such Loan Party under any Loan Document (includingamounts payable under this Section 2.19) and any reasonable expensesarising therefrom or with respect thereto, whether or not such IndemnifiedTaxes were correctly imposed by the relevant Governmental Authority.  The indemnity under this paragraph (d) shallbe paid within 30 days after the date the Recipient delivers to the applicableLoan Party a certificate stating the amount of Indemnified Taxes so payable 

 

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###  

### by such Recipient.  Such certificate shall be conclusive of theamount so payable absent manifest error. Such Recipient shall deliver a copy of such certificate to the Agent.

###  

### (e) The Lenders shall severally indemnify the Agent for the full amount of anyExcluded Taxes payable by the Agent with respect to any Loan Document or anypayment by any Loan Party under any Loan Document and any reasonable expensesarising therefrom or with respect thereto, whether or not such Excluded Taxeswere correctly imposed by the relevant Governmental Authority, except to theextent that any such amount or payment is determined by a court of competentjurisdiction by final and nonappealable judgment to have resulted from thegross negligence or wilful misconduct of the Agent.  The indemnity under this paragraph (e) shallbe paid within 30 days after the Agent delivers to the applicable Lender acertificate stating the amount of Excluded Taxes so payable by the Agent.  Such certificate shall be conclusive of theamount so payable absent manifest error.

###  

### (f) (i) Any Lender that is entitled to an exemption from, or reduction of, anyapplicable withholding Tax with respect to payments under any Loan Documentshall deliver to the Borrower and the Agent, at the time or times prescribed bylaw or reasonably requested by the Borrower or the Agent, such properlycompleted and executed documentation prescribed by law or reasonably requestedby the Borrower or the Agent as will permit such payments to be made without,or at a reduced rate of, withholding.  Inaddition, any Lender shall deliver such other documentation prescribed by lawor reasonably requested by the Borrower or the Agent as will enable theBorrower or the Agent to determine whether or not such Lender is subject tobackup withholding or information reporting requirements.  Notwithstanding anything to the contrary inthe preceding two sentences, the completion, execution and submission of suchdocumentation (other than such documentation set forth below in this paragraph(f)) shall not be required if in the Lender’s judgment such completion,execution or submission would subject such Lender to any material unreimbursedcost or expense or would materially prejudice the legal or commercial positionof such Lender. Upon the reasonable request of the Borrower or the Agent, anyLender shall update any form or certification previously delivered pursuant tothis Section 2.19.  If any such formor certification expires or becomes obsolete or inaccurate in any respect withrespect to a Lender, such Lender shall promptly (and in any event within 10days after such expiration, obsolescence or inaccuracy) notify the Borrower andthe Agent in writing of such expiration, obsolescence or inaccuracy.

###  

### (ii) Without limitingthe generality of the foregoing, if the Borrower is a U.S. Person, any Lenderwith respect to the Borrower shall, if it is legally eligible to do so, deliverto the Borrower and the Agent (in such number of copies reasonably requested bythe Borrower and the Agent) on or prior to the date on which such Lenderbecomes a party hereto (or, in the case of a participation holder, on or beforethe date such participation is effective hereunder) and on or before the date,if any, such Lender changes its applicable lending office by designating a newlending office, duly completed and executed copies of whichever of thefollowing is applicable:

 

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###  

### (A)  in the case of aLender that is a U.S. Person, IRS Form W-9;

###  

### (B) in the case of a Lender (other than a U.S. Person) claiming the benefits of anincome tax treaty to which the United States is a party (1) with respectto payments of interest under any Loan Document, IRS Form W-8BENestablishing an exemption from, or reduction of, U.S. Federal withholding Taxpursuant to the “interest” article of such tax treaty and (2) with respectto all other payments under any Loan Document, IRS Form W-8BENestablishing an exemption from U.S. Federal withholding Tax pursuant to the“business profits” or “other income” article of such tax treaty;

###  

### (C) in the case of a Lender (other than a U.S. Person) for whom payments under anyLoan Document constitute income that is effectively connected with suchLender’s conduct of a trade or business in the United States, IRS Form W-8ECI;

###  

### (D) in the case of a Lender (other than a U.S. Person) claiming the benefits of theexemption for portfolio interest under Section 881(c) of the Codeboth (1) IRS Form W-8BEN and (2) a certificate to the effectthat such Lender is not (a) a “bank” within the meaning of Section 881(c)(3)(A) ofthe Code, (b) a “10 percent shareholder” of the Borrower within themeaning of Section 881(c)(3)(B) of the Code, (c) a “controlledforeign corporation” described in Section 881(c)(3)(C) of the Codeand (d) conducting a trade or business in the United States with which therelevant interest payments are effectively connected;

###  

### (E) inthe case of a Lender (other than a U.S. Person) that either is not thebeneficial owner of payments made under any Loan Document or is a partnership (1) anIRS Form W-8IMY on behalf of itself and (2) the relevant formsprescribed in clauses (A), (B), (C), (D) and (F) of this paragraph(f)(ii) that would be required of each such beneficial owner or partner ofsuch partnership if such beneficial owner or partner were a Lender; or

###  

### (F) any other form prescribed by law as a basis for claiming exemption from, or areduction of, U.S. Federal withholding Tax together with such supplementarydocumentation necessary to enable the Borrower or the Agent to determine theamount of Tax (if any) required by law to be withheld.

###  

### (g) If any Recipient determines, in its sole discretion exercised in good faith,that it has received a refund of any Taxes as to which it has been indemnifiedpursuant to this Section 2.19 (including additional amounts paid by anyLoan Party pursuant to this Section 2.19), it shall pay to theindemnifying party an amount equal to such refund (but only to the extent ofindemnity payments made under this Section 2.19 with respect to the Taxesgiving rise to such refund), net of all out-of-pocket expenses (including anyTaxes) of such Recipient and without interest (other than any interest paid bythe relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request ofsuch Recipient, shall repay to such Recipient the amount paid to such Recipientpursuant to the previous sentence (plus 

 

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### any penalties, interest orother charges imposed by the relevant Governmental Authority) in the event suchRecipient is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary inthis paragraph (g), in no event will any Recipient be required to pay any amountto any Loan Party pursuant to this paragraph (g) if such payment wouldplace such Recipient in a less favorable position (on a net after-Tax basis)than such Recipient would have been in if the indemnification payments oradditional amounts giving rise to such refund had never been paid.  This paragraph (g) shall not beconstrued to require any Recipient to make available its Tax returns (or anyother information relating to its Taxes that it deems confidential) to any LoanParty or any other Person.

###  

### (h) Without prejudice to the survival of any other agreement contained herein, theagreements and obligations contained in this Section 2.19 shall survivetermination of the Loan Documents and payment of any obligations thereunder.

###  

## SECTION 2.20.  Termination or Assignment of Commitmentsunder Certain Circumstances.  In theevent that any Lender shall fail to pay amounts due to the Agent pursuant to Section 2.02(c) orany Lender shall have delivered a notice or certificate pursuant to Section 2.13or 2.14, or the Borrower shall be required to make additional payments to anyLender under Section 2.19, and provided that no Default or Event ofDefault shall have occurred and be continuing, the Borrower shall have theright, at its own expense, upon notice to such Lender and the Agent, to requiresuch Lender to transfer and assign without recourse (in accordance with andsubject to the restrictions contained in Section 9.04) all its interests,rights and obligations under this Agreement (other than any outstandingCompetitive Loans held by it) to an Eligible Assignee which shall assume suchobligations; provided that (i) no such termination or assignmentshall conflict with any law, rule or regulation or order of anyGovernmental Authority, (ii) the Borrower or such assignee, as the casemay be, shall pay to the affected Lender in immediately available funds on thedate of such termination or assignment the principal of and interest accrued tothe date of payment on the Loans (other than Competitive Loans) made by ithereunder and all other amounts accrued for its account or owed to it hereunder(other than any outstanding Competitive Loans held by it), (iii) if suchassignee is not a Lender, the Agent shall have given its prior written consentto such replacement (which consent will not be unreasonably withheld) and theBorrower or such financial institution shall have paid a processing andrecordation fee of $3,500 to the Agent and (iv) in the case of anyassignment resulting from a claim for compensation under Section 2.13 orpayments required to be made pursuant to Section 2.19, such assignmentwill result in a reduction of such compensation or payments thereafter.  A Lender shall not be required to make anysuch assignment or delegation if, prior thereto, as a result of a waiver bysuch Lender or otherwise, the circumstances entitling the Borrower to requiresuch assignment and delegation cease to apply.

##  

## SECTION 2.21.  Lending Offices and Lender Certificates;Survival of Indemnity.  To the extentreasonably possible, each Lender shall designate an alternate lending officewith respect to its Eurodollar Loans and Fixed Rate Loans to reduce anyliability of the Borrower to such Lender under Section 2.13 or to avoidthe unavailability of Eurodollar Loans under Section 2.10 or 2.14, so longas such designation is not 

 

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## disadvantageous to such Lender. A good faith certificate of a Lender setting forth a reasonable basis ofcomputation and allocation of the amount due under Section 2.13 or 2.15shall be final, conclusive and binding on the Borrower in the absence ofmanifest error.  The amount specified inany such certificate shall be payable on demand after receipt by the Borrowerof such certificate.  The obligations ofthe Borrower under Sections 2.13, 2.15, 2.18(c), 2.19 and 9.05 shallsurvive the payment of all amounts due under any Loan Document and thetermination of this Agreement.

##  

# ARTICLE III

#  

# REPRESENTATIONS ANDWARRANTIES

#  

The Borrower represents andwarrants as to itself and the Subsidiaries to each of the Lenders that:

 

## SECTION 3.01.  Corporate Existence and Standing.  The Borrower and each Subsidiary is dulyorganized, validly existing and, where such concept exists in the relevantjurisdiction of organization, in good standing under the laws of itsjurisdiction of organization and has all requisite authority to conduct itsbusiness in each jurisdiction in which its business is conducted where thefailure to so qualify would have a Material Adverse Effect.

##  

## SECTION 3.02.  Authorization and Validity.  Each Loan Party has the corporate or otherorganizational, as applicable, power and authority and legal right to executeand deliver the Loan Documents to which it is a party and to perform itsobligations thereunder (collectively, the “Transactions”).  The Transactions have been duly authorized byall necessary corporate or other organizational action, and if required,stockholder or other equity holder action, as applicable. This Agreement hasbeen duly executed and delivered by the Borrower and constitutes, and eachother Loan Document to which any Loan Party is to be a party, when executed anddelivered by such Loan Party, will constitute, a legal, valid and bindingobligation of the Borrower or such other Loan Party, enforceable against theBorrower or such other Loan Party in accordance with its terms, except asenforceability may be limited by bankruptcy, insolvency, moratorium or similarlaws affecting the enforcement of creditors’ rights generally.

##  

## SECTION 3.03.  No Conflict; Governmental Consent.  None of the Transactions will violate anylaw, rule, regulation, order, writ, judgment, injunction, decree or awardbinding on the Borrower or any Subsidiary or the Borrower’s or any Subsidiary’sarticles or certificate of incorporation, bylaws or other organizationaldocuments or the provisions of any indenture, instrument or agreement to whichthe Borrower or any Subsidiary is a party or is subject, or by which it, or itsproperty, is bound, or conflict therewith or constitute a default thereunder,or result in the creation or imposition of any Lien in, of or on the propertyof the Borrower or any Subsidiary pursuant to the terms of any such indenture,instrument or agreement, except for Liens created under the LoanDocuments.  No order, consent, approval,license, authorization, or validation of, or filing, recording or registrationwith, or exemption by, any governmental or public body or authority, or anysubdivision thereof, is required to 

 

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## authorize, or is required in connection with the execution, deliveryand performance of, or the legality, validity, binding effect or enforceabilityof, any of the Loan Documents, except acts necessary to perfect Liens createdunder the Loan Documents.

##  

## SECTION 3.04.  Compliance with Laws; Environmental andSafety Matters.  (a)  TheBorrower and each Subsidiary has complied with all applicable statutes, rules,regulations, orders and restrictions of any domestic or foreign government, orany instrumentality or agency thereof, having jurisdiction over the conduct oftheir respective businesses or the ownership of their respective properties,except to the extent that the failure to comply therewith could not, in theaggregate, be reasonably expected to have a Material Adverse Effect.

##  

### (b) The Borrower and each Subsidiary has complied in all material respects with allapplicable Federal, state, local and other statutes, ordinances, orders,judgments, rulings and regulations relating to environmental pollution or toenvironmental regulation or control or to employee health or safety.  Neither the Borrower nor any Subsidiary hasreceived notice of any material failure so to comply which could reasonably beexpected to result in a Material Adverse Effect.  The Borrower’s and the Subsidiaries’facilities do not manage any hazardous wastes, hazardous substances, hazardousmaterials, toxic substances, toxic pollutants or substances similarly denominated,as those terms or similar terms are used in the Resource Conservation andRecovery Act, the Comprehensive Environmental Response Compensation andLiability Act, the Toxic Substance Control Act, the Clean Air Act, the CleanWater Act or any other applicable law relating to environmental pollution oremployee health and safety, in violation in any material respect of any law orany regulations promulgated pursuant thereto. The Borrower is aware of no events, conditions or circumstancesinvolving environmental pollution or contamination or employee health or safetythat could reasonably be expected to result in liability on the part of theBorrower or any Subsidiary which could reasonably be expected to result in aMaterial Adverse Effect.

###  

## SECTION 3.05.  Financial Statements.  The Borrower has heretofore furnished to theLenders its consolidated balance sheet and statements of income, changes instockholders’ equity and cash flows as of the end of and for the fiscal yearended December 31, 2008, audited by and accompanied by the opinion ofDeloitte & Touche LLP, an independent registered public accountingfirm.  Such financial statements wereprepared in accordance with GAAP and present fairly the financial condition andresults of operations of the Borrower and the Consolidated Subsidiaries as ofsuch date and for such period.  Suchbalance sheet and the notes thereto disclose all material liabilities, director contingent, of the Borrower and the Consolidated Subsidiaries as of the datethereof.

##  

## SECTION 3.06.  No Material Adverse Change.  Except for any Disclosed Matter, no materialadverse change in the business, properties, financial condition, prospects orresults of operations of the Borrower and the Consolidated Subsidiaries hasoccurred since December 31, 2008. It is understood that downgrades or negative pronouncements by ratingagencies and volatility in the capital markets generally shall 

 

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##  

## not in and of themselves be considered material adverse changes, butthat the antecedents or consequences thereof may constitute such changes(except to the extent the same constitute Disclosed Matters).

##  

## SECTION 3.07.  Subsidiaries.  Schedule 3.07 contains an accurate listof all the significant joint ventures and all the Subsidiaries, in each case onand as of the Restatement Effective Date, setting forth their respectivejurisdictions of organization and the percentage of their respective ownershipinterests held by the Borrower or other Subsidiaries, and identifies eachSubsidiary that is a Designated Subsidiary on and as of the RestatementEffective Date.

##  

## SECTION 3.08.  Litigation.  Except for any Disclosed Matter, there is nolitigation, arbitration, governmental investigation, proceeding or inquirypending or, to the knowledge of any of their officers, threatened against oraffecting the Borrower or any Subsidiary that, individually or in theaggregate, could reasonably be expected to have a Material Adverse Effect.

##  

## SECTION 3.09.  Material Agreements.  Neither the Borrower nor any Subsidiary is indefault in the performance, observance or fulfillment of any of theobligations, covenants or conditions contained in any agreement to which it isa party, which default could reasonably be expected to have a Material AdverseEffect.

##  

## SECTION 3.10.  Regulation U.  Margin Stock constitutes, and at all timeswill constitute, less than 25% of the assets of the Borrower and theSubsidiaries that are subject to any limitation on sale or pledge hereunder.

##  

## SECTION 3.11.  Investment Company Act.  Neither the Borrower nor any Subsidiary is an“investment company” or a company “controlled” by an “investment company”,within the meaning of the Investment Company Act of 1940, as amended.

##  

## SECTION 3.12.  Use of Proceeds.  The Borrower will use the proceeds of theLoans only for working capital and other general corporate purposes.

##  

## SECTION 3.13.  Taxes. The Borrower and each Subsidiary (other than the Excluded Subsidiary)have filed all United States Federal Tax returns, in the case of the Borrowerand each Domestic Subsidiary, and all other Tax returns which are required tobe filed and have paid all Taxes due pursuant to said returns or pursuant toany assessment received by the Borrower or any such Subsidiary, including allFederal and state withholding Taxes and all Taxes required to be paid pursuantto applicable law, except such Taxes, if any, as are being contested in goodfaith and as to which adequate reserves have been provided.   The charges, accruals and reserves on thebooks of the Borrower and the Consolidated Subsidiaries in respect of any Taxesor other governmental charges are adequate.

##  

## SECTION 3.14.  Accuracy of Information.  The Borrower has disclosed to the Lenders allagreements, instruments and corporate or other restrictions to which the Borroweror any Subsidiary is subject, and all other matters known to the Borrower,that, individually or in the aggregate, could reasonably be expected to resultin a Material 

 

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##  

## Adverse Effect.  Neither theConfidential Information Memorandum nor any of the other reports, financialstatements, certificates or other written or formally presented informationfurnished by or on behalf of the Borrower or any Loan Party to the Agent or anyLender in connection with the negotiation of this Agreement or any other LoanDocument, included herein or therein or furnished hereunder or thereunder (ineach case taken as a whole and as modified or supplemented by other informationso furnished) contains any material misstatement of fact or omits to state anymaterial fact necessary to make the statements therein, in the light of thecircumstances under which they were made, not misleading; provided that,as to financial projections, if any, that have been prepared by the Borrowerand made available to the Agent, any Lender or any potential Lender, theBorrower only represents and warrants that such financial projections have beenprepared in good faith based upon assumptions believed by the management of theBorrower to be reasonable at the time of preparation (it being understood suchprojections are subject to significant uncertainties and contingencies, many ofwhich are beyond the Borrower’s control, and that no assurance can be giventhat the projections will be realized and the variations therefrom may bematerial).

##  

## SECTION 3.15.  No Undisclosed Dividend Restrictions.  Except for restrictions hereunder, and exceptfor restrictions on the payment of dividends under applicable law, none of theSubsidiaries (other than the Excluded Subsidiary) is subject to any agreement,amendment, covenant or understanding that directly or indirectly (through theapplication of financial covenants or otherwise) restricts the ability of suchentity to declare or pay dividends.

##  

## SECTION 3.16.  Properties.  (a)  The Borrower and each Subsidiaryhas good title to, or valid leasehold interests in, all its property (otherthan Intellectual Property) material to its business (including its MortgagedProperties), except where the failure to have such title or leasehold interestcould not, individually or in the aggregate, reasonably be expected to haveMaterial Adverse Effect.

##  

### (b) The Borrower and each Subsidiary (other than the Excluded Subsidiary) owns, oris licensed to use, all trademarks, tradenames, copyrights, patents and otherIntellectual Property material to the operation of its business, and, to theknowledge of the Borrower, the use thereof by the Borrower and the Subsidiariesdoes not infringe upon the Intellectual Property rights of any other Person,except for any such infringements that, individually or in the aggregate, couldnot reasonably be expected to result in a Material Adverse Effect.

###  

### (c) As of the Restatement Effective Date, neither the Borrower nor any DesignatedSubsidiary owns any parcel of real property in fee.

###  

## SECTION 3.17.  Collateral Matters.  (a)  The Collateral Agreement, uponexecution and delivery thereof by the parties thereto, will create in favor ofthe Agent, for the benefit of the Secured Parties, a valid and enforceablesecurity interest in the Collateral (as defined therein) and (i) when theCollateral constituting certificated securities (as defined in the UniformCommercial Code) is delivered to the Agent, together with instruments oftransfer duly endorsed in blank, the security interest created 

 

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##  

## under the Collateral Agreement will constitute a fully perfectedsecurity interest in all right, title and interest of the pledgors thereunderin such Collateral, prior and superior in right to any other Person, and (ii) whenfinancing statements in appropriate form are filed in the applicable filingoffices, the security interest created under the Collateral Agreement willconstitute a fully perfected security interest in all right, title and interestof the Loan Parties in the remaining Collateral to the extent perfection can beobtained by filing Uniform Commercial Code financing statements, prior andsuperior to the rights of any other Person, except for rights secured by Lienspermitted by Section 6.02.

##  

### (b) Each Mortgage, upon execution and delivery thereof by the parties thereto, willcreate in favor of the Agent, for the benefit of the Secured Parties, a legal,valid and enforceable security interest in all the applicable mortgagor’sright, title and interest in and to the Mortgaged Properties subject theretoand the proceeds thereof, and when the Mortgages have been filed in thejurisdictions specified therein, the Mortgages will constitute a fully perfectedsecurity interest in all right, title and interest of the mortgagors in theMortgaged Properties and the proceeds thereof, prior and superior in right toany other Person, but subject to Liens permitted by Section 6.02.

###  

### (c) Upon the recordation of the IP Security Agreements with the United StatesPatent and Trademark Office or the United States Copyright Office, asapplicable, and the filing of the financing statements referred to in paragraph(a) of this Section, the security interest created under the CollateralAgreement will constitute a fully perfected security interest in all right,title and interest of the Loan Parties in the Intellectual Property that isincluded in the Collateral and in which a security interest may be perfected byfiling in the United States of America, in each case prior and superior inright to any other Person, but subject to Liens permitted by Section 6.02(it being understood that subsequent recordings in the United States Patent andTrademark Office or the United States Copyright Office may be necessary toperfect a security interest in such Intellectual Property acquired by the LoanParties after the Restatement Effective Date).

###  

# ARTICLE IV

#  

# CONDITIONS

#  

## SECTION 4.01.  Restatement Effective Date.  The effectiveness of the amendment andrestatement of the Existing Credit Agreement in the form of this Agreement issubject to the satisfaction of the conditions precedent set forth in theAmendment Agreement (or waiver thereof in accordance with the terms of theAmendment Agreement).

##  

## SECTION 4.02.  All Borrowings.  The obligation of each Lender to make a Loanon the occasion of any Borrowing is subject to the satisfaction of thefollowing conditions:

##  

##### (a) The Agent shall have received a notice of such Borrowing as required by Section 2.03or 2.04, as applicable.

#####  

##### 53

##### 

 

##### (b) The representations and warranties set forth in Article III hereof and ineach Loan Document shall be true and correct in all material respects on and asof the date of, and after giving effect to, such Borrowing with the same effectas though made on and as of such date, except to the extent suchrepresentations and warranties expressly relate to an earlier date.

#####  

##### (c) At the time of, and immediately after giving effect to such Borrowing, (i) noDefault or Event of Default shall have occurred and be continuing and (ii) theBorrower shall be in compliance with Section 6.07(c) for a period offive consecutive Business Days ending immediately prior to the date of suchBorrowing.

#####  

##### (d) At the time of, and immediately after giving effect to such Borrowing, thesum of the Revolving Credit Exposures of all the Lenders plus the aggregateamount of all Competitive Loans outstanding at such time shall not exceed thelesser of (x) the Total Commitment and (y) the Maximum Availabilityat such time.

#####  

##### (e) The Agent shall have received a certificate of a Financial Officer of theBorrower, dated the date of such Borrowing, setting forth the MaximumAvailability as of the date of such Borrowing.

#####  

##### Each Borrowing shall be deemed to constitute a representation andwarranty by the Borrower on the date of such Borrowing as to the mattersspecified in paragraphs (b), (c) and (d) of this Section 4.02.  It is understood that this Section 4.02shall not apply to a conversion or continuation of any Standby Borrowingpursuant to Section 2.05.

#####  

# ARTICLE V

#  

# AFFIRMATIVE COVENANTS

#  

The Borrower covenants andagrees with each Lender that, until the Commitments have expired or beenterminated and the principal of or interest on each Loan, all Fees or all otherexpenses or amounts payable under any Loan Document shall have been paid infull, unless the Required Lenders shall otherwise consent in writing:

 

## SECTION 5.01.  Conduct of Business; Maintenance ofOwnership of Subsidiaries and Maintenance of Properties.  (a)  The Borrower will, and will causeeach Subsidiary (other than the Excluded Subsidiary) to, carry on and conductits business in substantially the same manner and in substantially the samefields of enterprise as it is presently conducted; provided that nosale, transfer or disposition of assets (including by means of a merger)permitted under Sections 6.03, 6.04 and 6.05 will be prohibited by thisparagraph (a).

##  

### (b) The Borrower will, and will cause each Subsidiary to do all things necessary toremain duly organized, validly existing and, where such concept exists in therelevant jurisdiction of organization, in good standing in its jurisdiction oforganization and maintain all requisite authority to conduct its business ineach 

 

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### jurisdiction in which itsbusiness is conducted, except where the failure to do so could not reasonablybe expected to have a Material Adverse Effect or in connection with adissolution, merger, or disposition of a Subsidiary permitted under Section 6.04.

###  

### (c) The Borrower will at all times own, directly or indirectly, at least (i) 50.1%of the outstanding Equity Interests of each of INTECH and Perkins and (ii) 95%of the outstanding Equity Interests of Janus Capital Management LLC, in eachcase free and clear of any Liens on such Equity Interests, other than Lienscreated under the Loan Documents and statutory Liens applicable to EquityInterests.

###  

### (d) The Borrower will, and will cause each Subsidiary (other than the ExcludedSubsidiary) to, do all things necessary to maintain, preserve, protect and keeptheir properties material to the conduct of their businesses in good repair,working order and condition, and make all necessary and proper repairs,renewals and replacements so that their businesses carried on in connectiontherewith may be properly conducted in all material respects at all times; providedthat no sale, transfer or disposition of assets (including by means of amerger) permitted under Sections 6.03, 6.04 and 6.05 will be prohibited by thisparagraph (d).

###  

## SECTION 5.02.  Insurance.  The Borrower will, and will cause eachSubsidiary (other than the Excluded Subsidiary) to, maintain, with Personsthat, to its knowledge, are financially sound and reputable insurancecompanies, insurance on all its property in such amounts and covering suchrisks as is consistent with sound business practice and customary withcompanies engaged in similar lines of business, and the Borrower will furnishto any Lender upon reasonable request full information as to the insurancecarried.  Each such policy of generalliability or casualty insurance maintained by or on behalf of Loan Partiesshall (a) in the case of each general liability insurance policy, name theAgent, on behalf of the Lenders, as an additional insured thereunder, (b) inthe case of each casualty insurance policy, contain a loss payable clause orendorsement that names the Agent, on behalf of the Secured Parties, as the losspayee thereunder and (c) provide for at least 30 days’ (or such shorternumber of days as may be agreed to by the Agent) prior written notice to theAgent of any cancellation of such policy.

##  

## SECTION 5.03.  Compliance with Laws and Payment ofMaterial Obligations and Taxes.  (a) The Borrower will, and will cause each Subsidiary to, comply in all materialrespects with all laws (including ERISA and the Fair Labor Standards Act, asamended), rules, regulations, orders, writs, judgments, injunctions, decrees orawards to which it may be subject if noncompliance therewith could reasonablybe expected to have a Material Adverse Effect.

##  

### (b) The Borrower will, and will cause each Subsidiary to, pay when due its materialobligations, including all taxes, assessments and governmental charges andlevies upon it or its income, profits or property, except (i) those whichare being contested in good faith by appropriate proceedings and with respectto which adequate reserves have been set aside or (ii) where any failureto pay could not reasonably be expected to have a Material Adverse Effect.

 

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## SECTION 5.04.  Financial Statements, Reports, etc.  The Borrower will maintain, for itself andeach Subsidiary, a system of accounting established and administered inaccordance with GAAP or IFRS, as applicable, and will furnish to the Agent andeach Lender:

##  

##### (a) within 90 days after the end of each of its fiscal years, its auditedconsolidated balance sheet and related consolidated statements of income,changes in stockholders’ equity and cash flows as of the end of and for suchfiscal year, setting forth in each case in comparative form the figures for theprior fiscal year, all audited by and accompanied by an unqualified (except forqualifications relating to changes in accounting principles or practicesreflecting changes in GAAP and required or approved by the Borrower’sindependent certified public accountants) audit report certified by anindependent registered public accounting firm of nationally recognized standingto the effect that such consolidated financial statements present fairly, inall material respects, the financial position, results of operations and cashflows of the Borrower and the Consolidated Subsidiaries on a consolidated basisas of the end of and for such year in accordance with GAAP;

#####  

##### (b) within 45 days after the end of each of the first three quarters of each of itsfiscal years, its consolidated balance sheet and related consolidatedstatements of income, changes in stockholders’ equity and cash flows as of theend of and for such fiscal quarter and the then elapsed portion of the fiscalyear, setting forth in each case in comparative form the figures for thecorresponding period or periods of (or, in the case of the balance sheet, as ofthe end of) the prior fiscal year, all certified by a Financial Officer of theBorrower as presenting fairly, in all material respects, the financialposition, results of operations and cash flows of the Borrower and theConsolidated Subsidiaries on a consolidated basis as of the end of and for suchfiscal quarter and such portion of the fiscal year in accordance with GAAP,subject to normal year-end audit adjustments and the absence of certainfootnotes;

#####  

##### (c) together with each delivery of financial statements under clause (a) or(b) of this Section 5.04, a compliance certificate substantially inthe form of Exhibit C signed by a Financial Officer of the Borrower, (i) certifyingas to whether a Default has occurred and, if a Default has occurred, specifyingthe details thereof and any action taken or proposed to be taken with respectthereto, (ii) setting forth reasonably detailed calculations demonstratingcompliance with Section 6.07, (iii) stating whether any change in GAAP orin the application thereof has occurred since the date of the consolidatedbalance sheet of the Borrower most recently theretofore delivered underclause (a) or (b) of this Section 5.04 (or, prior to thefirst such delivery, referred to in Section 3.05) and, if any such changehas occurred, specifying the effect of such change on the financial statements(including those for the prior periods) accompanying such certificate, and (iv) certifyingthat all notices required to be provided to the Agent under Sections 5.08and 5.09 have been provided;

 

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##### (d) as soon as possible and in any event within 10 days after any ResponsibleOfficer of the Borrower knows that (i) any Reportable Event has occurred withrespect to any Plan, (ii) any Withdrawal Liability has been incurred withrespect to any Multiemployer Plan or (iii) the Borrower or any member ofthe Controlled Group has received any notice concerning the imposition ofWithdrawal Liability or a determination that a Multiemployer Plan is, or isexpected to be, insolvent or in reorganization within the meaning ofTitle IV of ERISA or in endangered or critical status within the meaningof Section 305 of ERISA or Section 432 of the Code, a statement,signed by a Financial Officer of the Borrower, describing such ReportableEvent, Withdrawal Liability or notice and the action which the Borrowerproposes to take with respect thereto;

#####  

##### (e) promptly upon the furnishing thereof to the shareholders of the Borrower,copies of all financial statements, reports and proxy statements so furnished;

#####  

##### (f) promptly upon the filing thereof, copies of all registration statements andannual, quarterly, monthly or other regular reports which the Borrower or anyConsolidated Subsidiary files with the Securities and Exchange Commission or financialreports material to the interests of the Lenders or to the ability of theBorrower to perform its obligations under the Loan Documents;

#####  

##### (g) within 10 days after the end of each calendar month, a certificate signed by aFinancial Officer of the Borrower certifying as to the dollar amount ofLong-Term Assets Under Management as of the close of business on each BusinessDay during such month;

#####  

##### (h) in the event the dollar amount of Long-Term Assets Under Management as of theclose of business on any Business Day changes in a manner that, disregardingthe last sentence of the definition of the term “Maximum Availability”, wouldresult in a change in the Maximum Availability, no later than 12:00 noon, NewYork City time, on the first Business Day following the date of such change, acertificate of a Financial Officer of the Borrower notifying the Agent of suchchange and specifying Long-Term Assets Under Management as of the close ofbusiness on such immediately preceding Business Day;

#####  

##### (i) upon a reasonable request of the Agent therefor (and, in any event, no laterthan 12:00 noon, New York City time, on the first Business Day following theday of such request), a certificate signed by a Financial Officer of theBorrower certifying as to the dollar amount of Long-Term Assets UnderManagement as of the close of business on the Business Day immediatelypreceding the date of such request;

#####  

##### (j) within 60 days after the end of each fiscal quarter of the Borrower, acertificate of a Responsible Officer of the Borrower either (i) settingforth (A) all Equity Interests or Indebtedness owned by any Loan Party, (B) allIntellectual Property owned by any Loan Party, (C) all Mortgaged Propertyand (D) all 

 

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#####  

##### commercial tort claimsseeking damages of $3,000,000 or more in respect of which a complaint or acounterclaim has been filed by any Loan Party (including a brief descriptionthereof) and that, in each case, (x) if so owned or filed by a Loan Partyas of the Restatement Effective Date would have been required to be set forthon the applicable schedule to the Collateral Agreement or to the PerfectionCertificate pursuant to the terms thereof and (y) have not been set forthon a certificate previously delivered pursuant to this clause (j), or (ii) certifyingthat there has been no change (other than any change that could not reasonablybe expected to be adverse in any material respect to the creation or perfectionof the security interests in the Collateral on the terms and with the prioritycontemplated by the Security Documents, or otherwise be adverse in any materialrespect to the interest of the Lenders as secured parties) in the informationset forth in the certificate most recently delivered pursuant to this clause (j) or,in the case of the first such certificate delivered after the RestatementEffective Date, the information set forth on the applicable schedule to theCollateral Agreement or to the Perfection Certificate;

#####  

##### (k) promptly after Moody’s or S&P shall have announced a change in the ratingor the outlook in effect for the Index Debt, written notice of such change; and

#####  

##### (l) such other information (including financial information and any informationrequired by the Patriot Act or any other “know your customer” or similar lawsor regulations) as the Agent or any Lender may from time to time reasonablyrequest.

#####  

The financial statements(and the related audit opinions and certifications) required to be delivered bythe Borrower pursuant to clauses (a) and (b) of this Section 5.04and the reports and statements required to be delivered by the Borrowerpursuant to clauses (e) and (f) of this Section 5.04 shallbe deemed to have been delivered (i) when reports containing suchfinancial statements (and the related audit opinions and certifications) orother materials are posted on the Borrower’s website on the internet athttp://ir.janus.com (or any successor page identified in a notice given tothe Agent and the Lenders) or on the SEC’s website on the internet atwww.sec.gov and the Borrower has notified the Agent (who in turn shall notifythe Lenders) that such reports have been so posted or (ii) when suchfinancial statements, reports or statements are delivered in accordance with Section 9.17(a).

 

## SECTION 5.05.  Notices of Material Events.  Promptly and in any event within fiveBusiness Days after a Responsible Officer of the Borrower becomes awarethereof, the Borrower will give notice in writing to the Agent and the Lendersof the occurrence of (a) any Default or Event of Default or (b) anyother development, financial or otherwise, which has resulted or couldreasonably be expected to result in a Material Adverse Effect.

##  

## SECTION 5.06.  Books and Records; Access to Propertiesand Inspections.  The Borrower will,and will cause each Subsidiary (other than the Excluded 

 

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## Subsidiary) to, keep proper books and account in which full, true andcorrect entries are made of all dealings and transactions in relation to itsbusiness and activities.  The Borrowerwill, and will cause each Subsidiary (other than the Excluded Subsidiary) to,permit the Agent and the Lenders to make reasonable inspections during regularbusiness hours of the properties, corporate books and financial records of theBorrower or any such Subsidiary, to make reasonable examinations and copies ofthe books of accounts and other financial records of the Borrower or any suchSubsidiary, and to discuss the affairs, finances and accounts of the Borroweror any such Subsidiary with, and to be advised as to the same by, itsrespective officers at such reasonable times and intervals as the Lenders maydesignate; provided that (a) any inspection by any Lender shall beat such Lender’s own expense, (b) unless a Default or Event of Defaultshall have occurred and be continuing, there shall be no more than two suchinspections during any fiscal year and (c) the Lenders shall coordinate thetiming of their inspections through the Agent and provide reasonable noticethereof.

##  

## SECTION 5.07.  Use of Proceeds.  The Borrower will use the proceeds of theLoans solely for the purposes set forth in Section 3.12.

##  

## SECTION 5.08.  Information Regarding Collateral; DepositAccounts; Securities Accounts.  (a) The Borrower will furnish to the Agent prompt written notice of any change in (i) thelegal name of any Loan Party, as set forth in its organizational documents, (ii) thejurisdiction of organization or the form of organization of any Loan Party(including as a result of any merger or consolidation), (iii) the locationof the chief executive office of any Loan Party or (iv) the organizationalidentification number, if any, or, with respect to any Loan Party organizedunder the laws of a jurisdiction that requires such information to be set forthon the face of a Uniform Commercial Code financing statement, the FederalTaxpayer Identification Number of such Loan Party.  The Borrower agrees not to effect or permitany change referred to in the preceding sentence unless all filings have beenmade under the Uniform Commercial Code or otherwise that are required in orderfor the Agent to continue at all times following such change to have a valid,legal and perfected security interest in all the Collateral.

##  

### (b) The Borrower will furnish to the Agent prompt written notice of (i) theacquisition by any Loan Party of, or any real property interest otherwisebecoming, a Mortgaged Property after the Restatement Effective Date and (ii) theacquisition by any Loan Party of any other material assets after theRestatement Effective Date, other than any assets constituting Collateral underthe Security Documents in which the Agent shall have a valid, legal andperfected security interest (with the priority contemplated by the applicableSecurity Document) upon the acquisition thereof.

###  

### (c) The Borrower will cause all cash owned by the Borrower and the DomesticSubsidiaries at any time, other than cash held in the ordinary course ofbusiness solely for the payment of salaries and wages, workers’ compensationand similar expenses and other cash in an aggregate amount not to exceed$5,000,000 at any time, to be held in deposit accounts maintained in the nameof one or more Loan Parties and will, in each case as promptly as practicable,notify the Agent of the 

 

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### existence of any depositaccount maintained by a Loan Party in respect of which a Control Agreement isrequired to be in effect pursuant to clause (f) of the definition ofthe term “Collateral and Guarantee Requirement” but is not yet in effect.

###  

### (d) The Borrower will cause all securities owned by the Borrower and the DomesticSubsidiaries at any time, other than (i) Equity Interests in theSubsidiaries, (ii) securities beneficially owned by any customer and (iii) securitiesrepresenting ownership interests in mutual funds, to be held in separatesecurities accounts maintained in the name of one or more Loan Parties andwill, in each case as promptly as practicable, notify the Agent of theexistence of any securities account maintained by a Loan Party in respect ofwhich a Control Agreement is required to be in effect pursuant to clause (f) ofthe definition of the term “Collateral and Guarantee Requirement” but is notyet in effect.

###  

## SECTION 5.09.  Additional Subsidiaries.  If any Subsidiary is formed or acquired afterthe Restatement Effective Date, the Borrower will, within 10 Business Daysafter such Subsidiary is formed or acquired, notify the Agent thereof andwithin 15 Business Days (or, in the case of any Foreign Subsidiary,30  Business Days) after such Subsidiary is formed or acquired (or, ineach case, such longer period as may be agreed to by the Agent) cause theCollateral and Guarantee Requirement to be satisfied with respect to suchSubsidiary (if it is a Designated Subsidiary) and with respect to any EquityInterest in or Indebtedness of such Subsidiary owned by a Loan Party.

##  

## SECTION 5.10.  Further Assurances.  The Borrower will, and will cause eachSubsidiary Loan Party to, execute any and all further documents, financingstatements, agreements and instruments, and take all such further actions(including the filing and recording of financing statements, fixture filings,mortgages and other documents), that may be required under any applicable law,or that the Agent may reasonably request, to cause the Collateral and GuaranteeRequirement to be and remain satisfied at all times or otherwise to effectuatethe provisions of the Loan Documents, all at the expense of the LoanParties.  The Borrower will provide tothe Agent, from time to time upon reasonable request, evidence reasonablysatisfactory to the Agent as to the perfection and priority of the Lienscreated or intended to be created by the Security Documents.

##  

# ARTICLE VI

#  

# NEGATIVE COVENANTS

#  

The Borrower covenants andagrees with each Lender that, until the Commitments have expired or beenterminated and the principal of or interest on each Loan, all Fees or all otherexpenses or amounts payable under any Loan Document shall have been paid infull, unless the Required Lenders shall otherwise consent in writing:

 

## SECTION 6.01.  Indebtedness of Subsidiaries.  The Borrower will not permit any Subsidiary(other than the Excluded Subsidiary) to incur, create or suffer to exist anyIndebtedness, except:

 

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### (a) Indebtedness incurred to finance the acquisition, repair or improvement of anyfixed or capital assets, including Capitalized Lease Obligations (and anyReplacement Indebtedness in respect thereof); provided that (i) theprincipal amount of such Indebtedness shall not exceed the purchase price ofsuch assets or the cost of such repair or improvement, (ii) suchIndebtedness (and any Replacement Indebtedness in respect thereof) shall not besecured by any Lien on any assets other than the assets so acquired, repairedor improved and (iii) the aggregate principal amount of such Indebtednessand such Replacement Indebtedness, when taken together with the aggregateprincipal amount of any Indebtedness incurred under clause (j) of this Section 6.01,shall not exceed $15,000,000 at any time outstanding;

###  

### (b) Indebtedness of any Subsidiary to the Borrower or any other Subsidiary; providedthat (i) any such Indebtedness owing by any Loan Party shall besubordinated to the Obligations on terms no less favorable to the Lenders thanthose set forth in Exhibit G, (ii) any such Indebtedness owing to anyLoan Party shall be evidenced by a promissory note, which may be a global note,and shall have been pledged pursuant to the Collateral Agreement and (iii) anysuch Indebtedness of any Subsidiary that is not a Loan Party to the Borrower orany other Loan Party shall be incurred in compliance with Section 6.09(b);

###  

### (c) Indebtedness created under the Loan Documents;

###  

### (d) Attributable Debt in connection with any Sale-Leaseback Transaction permittedpursuant to Section 6.03;

###  

### (e) Indebtedness of a Person existing at the time such Person becomes a Subsidiaryand any Replacement Indebtedness in respect thereof; provided that suchIndebtedness was not created in contemplation of or in connection with suchPerson becoming a Subsidiary;

###  

### (f) Indebtedness existing on the Restatement Effective Date and set forth onSchedule 6.01 and any Replacement Indebtedness in respect thereof;

###  

### (g) Guarantees of Indebtedness permitted under clauses (a) through (d) ofthis Section 6.01; provided that such Guarantees comply with Section 6.09;

###  

### (h) Indebtedness owed in respect of netting services, overdraft protections andsimilar arrangements, in each case incurred in the ordinary course of businessin connection with cash management and deposit accounts;

###  

### (i) Indebtedness incurred in the ordinary course of business and arising fromagreements or arrangements providing for surety, stay and appeal bonds or as anaccount party in respect of letters of credit; provided that theaggregate amount of Indebtedness in respect of letters of credit incurred inreliance on this clause (i) shall not exceed $15,000,000 at any timeoutstanding; and

 

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### (j) other Indebtedness of any Subsidiary; provided that the aggregateprincipal amount of all Indebtedness incurred under this clause (j), whentaken together with the aggregate principal amount of all Indebtedness incurredunder clause (a) of this Section 6.01, shall not exceed $15,000,000at any time outstanding.

###  

## SECTION 6.02.  Liens.  The Borrower willnot, and will not permit any Subsidiary (other than the Excluded Subsidiary)to, create, incur or suffer to exist any Lien in or on its property (now orhereafter acquired), or on any income or revenues or rights in respect of anythereof, except:

##  

##### (a) Liens created under the Loan Documents;

#####  

##### (b) Liens for Taxes on its property if the same shall not at the time be delinquentor thereafter can be paid without penalty, or are being contested in good faithand by appropriate proceedings;

#####  

##### (c) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liensand other similar liens arising in the ordinary course of business that securepayment of obligations (other than Indebtedness) that are not more than60 days past due or that are being contested in good faith by appropriateproceedings;

#####  

##### (d) Liens arising out of pledges or deposits under worker’s compensation laws,unemployment insurance, old age pensions, or other social security orretirement benefits, or similar legislation;

#####  

##### (e) Liens arising out of deposits to secure leases, trade contracts, statutoryobligations, appeal bonds, performance bonds and other obligations of likenature, in each case arising in the ordinary course of business;

#####  

##### (f) utility easements, building restrictions and such other encumbrances or chargesagainst real property as are of a nature generally existing with respect toproperties of a similar character and that do not in any material way affectthe marketability of the same or interfere with the use thereof in the businessof the Borrower or the Subsidiaries;

#####  

##### (g) Liens existing on the Restatement Effective Date and described inSchedule 6.02, and Liens extending or replacing such Liens; providedthat such Liens (including any such extension or replacement Liens) (i) secureonly those obligations that they secured on the Restatement Effective Date andReplacement Indebtedness in respect thereof and (ii) extend only to the assetsthat they encumbered on the Closing Date;

#####  

##### (h) Liens on fixed or capital assets securing Indebtedness permitted under Section 6.01(a) incurredto finance the acquisition, repair or improvement of such assets (and anyReplacement Indebtedness in respect thereof); provided that such Liensextend only to such assets;

 

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##### (i) Liens deemed to exist in connection with Permitted B Share Transactions; providedthat such Liens extend only to B Share Fees and not to any other assets of theBorrower and the Subsidiaries;

#####  

##### (j) Environmental Liens securing clean-up costs or fines, not in excess of$25,000,000 in aggregate principal amount, excluding Environmental Liens thatare being contested in good faith by appropriate proceedings and theenforcement of which is stayed;

#####  

##### (k) banker’s liens, rights of setoff or similar rights and remedies as to depositaccounts or other funds maintained with depository institutions; providedthat such deposit accounts or funds are not established or deposited for thepurpose of providing collateral for any Indebtedness and are not subject torestrictions on access by the Borrower or any Subsidiary in excess of thoserequired by applicable banking regulations;

#####  

##### (l) judgment Liens in respect of judgments that have not resulted in an Event ofDefault under clause (j) of Article VII;

#####  

##### (m) any Lien existing on any property before the acquisition thereof or existing onany property of any Person that becomes a Subsidiary after the Closing Datebefore the time such Person becomes a Subsidiary, and Liens extending orreplacing such Liens; provided that (i) no such Lien is created incontemplation of or in connection with such acquisition or such Person becominga Subsidiary, as the case may be, (ii) no such Lien shall apply to anyother property and (iii) no such Lien shall secure obligations other thanthe obligations which it secures on the date of such acquisition or the datesuch Person becomes a Subsidiary, as the case may be, and ReplacementIndebtedness in respect thereof;

#####  

##### (n) Liens on the Excluded Securities and the Excluded Securities Accounts; providedthat (i) such Liens secure only obligations of the Borrower and theSubsidiaries in respect of the Specified Hedging Agreements and (ii) suchLiens extend only to the Excluded Securities and the Excluded SecuritiesAccounts; and

#####  

##### (o) other Liens securing Indebtedness or other obligations in an aggregateprincipal amount that, when taken together with the aggregate amount of allAttributable Debt in connection with Sale and Leaseback Transactions permittedunder Section 6.03, does not exceed $10,000,000 at any time outstanding.

#####  

## SECTION 6.03.  Sale and Lease-Back Transactions.  The Borrower will not, and will not permitany Subsidiary (other than the Excluded Subsidiary) to, enter into anyarrangement, directly or indirectly, with any Person whereby it shall sell ortransfer any property, real or personal, used or useful in its business,whether now owned or hereafter acquired, and thereafter rent or lease suchproperty or other property which it intends to use for substantially the samepurpose or purposes as the property being sold or transferred (a “Sale andLeaseback Transaction”); provided that the Borrower or any 

 

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## Subsidiary may enter into any Sale and Leaseback Transaction if (a) atthe time of such transaction no Default or Event of Default shall have occurredand be continuing, (b) the proceeds from the sale of the subject propertyshall be at least equal to its fair market value on the date of such sale and (c) theaggregate amount of all Attributable Debt in connection with all Sale andLeaseback Transactions of the Borrower and the Subsidiaries, when takentogether with the aggregate principal amount of all Indebtedness or otherobligations secured by Liens permitted under Section 6.02(o), does notexceed $10,000,000 at any time outstanding.

##  

## SECTION 6.04.  Mergers, Consolidations and Transfers ofAssets.  The Borrower will not, andwill not permit any Subsidiary (other than the Excluded Subsidiary) to, mergeinto or consolidate with any other Person, or permit any other Person to mergeinto or consolidate with it, or sell, transfer, lease or otherwise dispose ofany of its assets (whether now owned or hereafter acquired), including anyEquity Interests in any Subsidiary, and will not permit any wholly-ownedSubsidiary to issue any additional Equity Interests in such Subsidiary (otherthan to the Borrower or any other Subsidiary); provided that:

##  

##### (a) the Borrower and any Subsidiary may sell or license assets (includingIntellectual Property) in the ordinary course of business;

#####  

##### (b) the Borrower may sell or transfer assets in connection with Permitted B ShareTrue Sale Transactions;

#####  

##### (c) if at the time thereof and immediately after giving effect thereto no Defaultshall have occurred and be continuing:

#####  

###### (i) any wholly owned Domestic Subsidiary may merge into the Borrower in atransaction in which the Borrower is the surviving corporation;

######  

###### (ii) any Subsidiary may merge into or consolidate with any other Subsidiary (otherthan the Excluded Subsidiary) in a transaction in which no Person other thanthe Borrower or a Subsidiary Loan Party receives any consideration and if (x) eitherof the merging or consolidating Subsidiaries is a Loan Party, the surviving orresulting Subsidiary is a Loan Party or (y) either of the merging orconsolidating Subsidiaries is a wholly owned Subsidiary, the surviving orresulting Subsidiary is a wholly-owned Subsidiary;

######  

###### (iii) the Borrower and the Subsidiaries may sell, transfer, lease, license orotherwise dispose of assets (other than (A) Equity Interests in INTECH orPerkins or (B) securities of Stanfield Victoria Funding LLC) the NetProceeds of which do not exceed, when taken together with the Net Proceeds ofall other assets sold, transferred, leased, licensed or otherwise disposed ofon or after the Restatement Effective Date pursuant to this clause (iii),$25,000,000 in the aggregate;

 

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###### (iv) subject to Section 5.01(c), the Borrower and the Subsidiaries may sell,transfer or otherwise dispose of Equity Interests in INTECH or Perkins; providedthat, with respect to any such sale, transfer or other disposition, (x) theBorrower shall have delivered to the Agent a certificate signed by a FinancialOfficer of the Borrower setting forth the Applicable Percentage with respectthereto and a reasonably detailed calculation thereof and (y) the Borrowershall apply the Net Proceeds thereof to prepay Standby Loans (and otherIndebtedness) as required pursuant to Section 2.12(d); and

######  

###### (v) the Borrower and the Subsidiaries may sell, transfer or otherwise dispose ofsecurities of Stanfield Victoria Funding LLC; provided that, withrespect to any such sale, transfer or other disposition, the Borrower shallapply the Net Proceeds thereof to prepay Standby Loans as required pursuant to Section 2.12(d);

######  

##### (d) the Borrower and the Subsidiaries may consummate any Sale and LeasebackTransaction permitted under Section 6.03; and

#####  

##### (e) the Borrower and the Subsidiaries may make any sale, transfer, lease or otherdisposition to the Borrower or any Subsidiary; provided that any suchsale, transfer, lease or other disposition involving a Subsidiary that is not aLoan Party shall be made in compliance with Sections 6.05 and 6.09.

#####  

## SECTION 6.05.  Transactions with Affiliates.  TheBorrower will not, and will not permit any Subsidiary (other than the ExcludedSubsidiary) to, sell or transfer any assets to, or purchase or acquire anyassets from, or otherwise engage in any other transactions with, any of itsAffiliates (other than the Borrower or any Subsidiary (other than the ExcludedSubsidiary)), except that the Borrower or any Subsidiary may engage in any ofthe foregoing transactions at prices and on terms and conditions which, takenas a whole, are not less favorable to the Borrower or such Subsidiary thanwould prevail in an arm’s-length transaction with unrelated third parties.

##  

## SECTION 6.06.  Restrictive Agreements; Certain OtherAgreements.  (a)  The Borrowerwill not, and will not permit any Subsidiary (other than the ExcludedSubsidiary) to, enter into, incur or permit to exist any agreement or otherarrangement that, directly or indirectly (through the application of financialcovenants or otherwise), prohibits or restricts the ability of any Subsidiaryto declare and pay dividends or other distributions with respect to its EquityInterests or to make or repay any loans or advances to the Borrower or toGuarantee Indebtedness of the Borrower; provided that the foregoingshall not apply to prohibitions or restrictions (i) imposed by applicablelaw or any Loan Document, (ii) contained in agreements relating to securedIndebtedness permitted hereunder, if such prohibitions or restrictions applyonly to (A) assets other than cash securing such Indebtedness or (B) cashin an amount not greater than the principal amount of such Indebtedness thathas been deposited in a collateral or similar account to cash collateralizesuch Indebtedness, or (iii) contained in agreements relating to the saleof a Subsidiary, or a business unit, division, product line or line ofbusiness, 

 

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## that are applicable solely pending such sale, if such prohibitions orrestrictions apply only to the Subsidiary, or the business unit, division,product line or line of business, that is to be sold and such sale is permittedhereunder.

##  

### (b) The Borrower will not, and will not permit any Subsidiary (other than theExcluded Subsidiary) to, enter into, incur or permit to exist any agreement(including any indenture or lease) or instrument containing any covenantrestricting the incurrence of Indebtedness or governing the Borrower’s and theSubsidiaries’ financial condition if such covenant is either not comparable toany covenant in this Agreement or is more restrictive than the analogouscovenant in this Agreement, unless the Borrower (i) has delivered a copyof such agreement or instrument to the Agent not less than 10 Business Daysprior to executing the same and (ii) has entered into an amendment to thisAgreement to add such covenant, mutatis mutandis, or to conform the analogouscovenant in this Agreement to such more restrictive covenant.

###  

## SECTION 6.07.  Certain Financial Covenants.  The Borrower will not:

##  

##### (a) permit the Leverage Ratio on any date to exceed 8.00:1.00;

#####  

##### (b) permit the Interest Coverage Ratio to be less than 2.00:1.00 for any period offour fiscal quarters ending after the Restatement Effective Date; and

#####  

##### (c) permit Long-Term Assets Under Managementat any time to be less than or equal to the Minimum AUM.

#####  

## SECTION 6.08.  Margin Stock.  The Borrower will not, and will not permitany Subsidiary (other than the Excluded Subsidiary) to, purchase or otherwiseacquire Margin Stock if, after giving effect to any such purchase oracquisition, Margin Stock owned by the Borrower and the Subsidiaries wouldrepresent more than 25% of the assets of the Borrower and the Subsidiaries on aconsolidated basis (valued in accordance with Regulation U); providedthat, subject to Section 6.10, the Borrower may repurchase its capitalstock pursuant to any stock buyback program approved by the Borrower’s Board ofDirectors.  For purposes of this Section 6.08,on any date of determination, Margin Stock and the total assets of the Borrowerand the Subsidiaries will be valued in a manner determined by the Borrower ingood faith and consistent with the requirements of Regulation U.

##  

## SECTION 6.09.  Investments, Loans, Advances andGuarantees.  The Borrower will not,and will not permit any Subsidiary (other than the Excluded Subsidiary) to,purchase, hold, acquire (including pursuant to any merger or consolidation withany Person that was not a Subsidiary prior thereto), make or otherwise permitto exist any Investment in or, in the case of clause (b) below, purchase orotherwise acquire (in one transaction or a series of transactions) all orsubstantially all of the assets of:

##  

##### (a) so long as the Borrower shall own any Equity Interests in Capital GroupPartners, Capital Group Partners or any of its subsidiaries, except that theBorrower may (i) make regularly scheduled payments of interest andprincipal in respect of any Indebtedness of the Borrower that shall have beenpurchased or 

 

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##### otherwise acquired byCapital Group Partners from third parties prior to the Closing Date and (ii) makeInvestments in Capital Group Partners in an aggregate principal amount not toexceed $5,000,000 during any fiscal year; or

#####  

##### (b) any other Person, except:

#####  

###### (i) Permitted Investments;

######  

###### (ii) Investments in the Borrower or any Subsidiary (other than the ExcludedSubsidiary); provided that (A) after the Restatement Effective Date, noSubsidiary shall acquire any Equity Interest in the Borrower, (B) suchSubsidiary is a Subsidiary prior to the making of such Investments, (C) anyEquity Interests held by a Loan Party in any Subsidiary shall be pledgedpursuant to, and to the extent required by, the Collateral Agreement and (D) theaggregate amount of such Investments by Loan Parties in Subsidiaries that arenot Loan Parties (excluding all such Investments existing on the RestatementEffective Date and set forth on Schedule 6.09) shall not exceed$15,000,000 at any time outstanding; providedfurther that (x) noInvestment in any Subsidiary that is not a Loan Party may be made in relianceon this clause (ii) at any time that an Event of Default shall haveoccurred and be continuing and (y) notwithstanding the foregoing, theBorrower and the Subsidiaries shall be permitted to make accounting balancereconciliations through capital contributions, dividends and loan forgiveness,in each case in the ordinary course of business and consistent with past cashmanagement practices;

######  

###### (iii) Investments in seed financing for early-stage funds in an aggregate amount notto exceed $150,000,000 at any time outstanding;

######  

###### (iv) Investments made solely with the Net Proceeds from the issuance, after the RestatementEffective Date, of common stock in the Borrower;

######  

###### (v) Investments made as a result of the receipt of noncash consideration from asale, transfer, lease or other disposition of any asset in compliance with Section 6.04;

######  

###### (vi) Investments in the form of (A) the Specified Hedging Agreements; (B) HedgingAgreements entered into to (x) hedge or mitigate risks to which theBorrower or any Subsidiary has actual exposure (other than in respect of EquityInterests in or Indebtedness of the Borrower or any Subsidiary) or (y) effectivelycap, collar or exchange interest rates (from fixed to floating rates, from onefloating rate to another floating rate or otherwise) with respect to anyinterest-bearing liability or investment of the Borrower or any Subsidiary; (C) anycall/put spread Hedging Agreement entered into in connection with convertibleIndebtedness of the Borrower; and (D) Hedging Agreements entered into 

 

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###### in connection with thegranting by the Borrower of long-term incentive awards under its “Mutual FundShare Investment Plan”, provided that such Hedging Agreements areentered into in a manner consistent with past practices;

######  

###### (vii) compensation, travel, lodging, business expenses, attorney’s expenses arisingfrom indemnification and litigation obligations and similar advances todirectors and employees of the Borrower or any Subsidiary to cover matters thatare expected at the time of such advances to be treated as expenses foraccounting purposes and that are made in the ordinary course of business;

######  

###### (viii) the purchase or other acquisition by the Borrower or any Subsidiary of EquityInterests in, or all or substantially all the assets of, any Person; providedthat (i) with respect to each such purchase or other acquisition, allactions required to be taken to satisfy the requirements set forth in the term“Collateral and Guarantee Requirement” shall have been taken (or arrangementsfor the taking of such actions satisfactory to the Agent shall have been made)and (ii) the aggregate consideration paid therefor, together with theaggregate consideration paid for any other such purchase or acquisitionconsummated after the Restatement Effective Date in reliance on this clause (viii) (including,in each case, Indebtedness assumed in connection therewith) shall not exceed$15,000,000;

######  

###### (ix) (A) purchases of Equity Interests in INTECH and/or Perkins, in each casein amounts and at prices required pursuant to (x) operating agreements orsimilar governing documents of INTECH or Perkins, as the case may be, in eachcase as such requirements are in effect on the Restatement Effective Date, (y) employmentagreements with officers of INTECH or Perkins, as the case may be, and (z) anyshare liquidity or withholding program for employees or officers of INTECH orPerkins, as the case may be, and (B) after October 1, 2009, otherpurchases of Equity Interests in INTECH and/or Perkins so long as, after givingeffect thereto, (x) the Leverage Ratio, determined as of the end of thefiscal quarter of the Borrower most recently then ended prior to the date ofthe consummation thereof and for which financial statements shall have beendelivered pursuant to Section 5.04(a) or 5.04(b), but giving effecton a pro forma basis to any Indebtedness incurred in connection with suchpurchase, shall be less than 4.50:1.00, (y) no Loans shall be outstandingand (z) no Default shall have occurred and be continuing;

######  

###### (x) Investments in Janus Capital International Limited made for the sole purpose ofenabling Janus Capital International Limited to meet the minimum capitalmaintenance requirements applicable to Janus Capital International Limitedunder the rules and regulations of the FSA (and maintain regulatorycapital in excess thereof in an amount not to exceed 50% of such minimumregulatory capital); provided that the 

 

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###### aggregate amount of suchInvestments outstanding at any time shall not exceed the sum of (A) theJCIL Distribution Amount as of such time and (B) £10,000,000; and

######  

###### (xi)  Investments of customer cash and customersecurities.

######  

## SECTION 6.10.  Restricted Payments; Certain Payments ofIndebtedness.  (a)  The Borrowerwill not, and will not permit any Subsidiary (other than the ExcludedSubsidiary) to, declare or make, or agree to pay or make, directly orindirectly, any Restricted Payment, or incur any obligation (contingent orotherwise) to do so, except that:

##  

#### (i) any Subsidiary may declare and pay dividends or make other Restricted Paymentswith respect to its capital stock, partnership or membership interests or othersimilar Equity Interests, ratably to the holders of such Equity Interests;

####  

#### (ii) so long as no Default shall have occurred and be continuing or would resulttherefrom, the Borrower may declare and pay dividends or make otherdistributions (A) with respect to its common stock (x) in an amountnot exceeding $0.04 per share during any fiscal year (subject to appropriateadjustment for stock splits, stock dividends, share combinations and similartransactions) or (y) payable in additional Equity Interests (other thanDisqualified Stock) or (B) with respect to its preferred Equity Interestspayable in cash or in additional Equity Interests (other than DisqualifiedStock);

####  

#### (iii) in addition to the transactions permitted under Section 6.09(b)(ix) andso long as no Default shall have occurred and be continuing or would resulttherefrom, the Borrower and the Subsidiaries may make (A) RestrictedPayments to current or former directors, officers, employees or consultants ofthe Borrower and the Subsidiaries pursuant to and in accordance with stockoption plans or other benefit plans or agreements of the Borrower or anySubsidiary (the “Company Plans”), including in connection with the deathor disability of any such person, provided that the aggregate amount ofsuch payments made in the form of cash since the Restatement Effective Dateshall not exceed $10,000,000 in the aggregate; or (B) Restricted Paymentsin the form of an exchange of outstanding stock options for new stock optionspursuant to and in accordance with the Company Plans;

####  

#### (iv) the Borrower may make cash payments in lieu of the issuance of fractionalshares representing insignificant interests in the Borrower in connection withthe exercise of warrants, options or other securities convertible into orexchangeable for Equity Interests in the Borrower;

####  

#### (v) so long as no Default shall have occurred and be continuing or would resulttherefrom, the Borrower and the Subsidiaries may make accounting balancereconciliations among themselves through capital contributions, 

 

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#### dividends and loanforgiveness, in each case in the ordinary course of business and consistentwith past cash management practices;

####  

#### (vi) Restricted Payments in the form of any payment by the Borrower, or anySubsidiary, as the case may be, on account of (A) any purchase,redemption, retirement, acquisition, cancellation or termination of any EquityInterests in INTECH and/or Perkins, in each case in amounts and at pricesrequired pursuant to (x) operating agreements or similar governingdocuments of INTECH or Perkins, as the case may be, in each case as suchrequirements are in effect on the Restatement Effective Date, (y) employmentagreements with officers of INTECH or Perkins, as the case may be, and (z) anyshare liquidity or withholding program for employees or officers of INTECH orPerkins, as the case may be, and (B) after October 1, 2009, any otherpurchase, redemption, retirement, acquisition, cancellation or termination ofEquity Interests in INTECH and/or Perkins, so long as, after giving effectthereto, (x) the Leverage Ratio, determined as of the end of the fiscalquarter of the Borrower most recently then ended prior to the date of theconsummation thereof and for which financial statements shall have beendelivered pursuant to Section 5.04(a) or 5.04(b), but giving effecton a pro forma basis to any Indebtedness incurred in connection with suchpurchase, redemption, retirement, acquisiton, cancelation or termination shallbe less than 4.50:1.00, (y) no Loans shall be outstanding and (z) noDefault shall have occurred and be continuing; and

####  

#### (vii) the Borrower may repurchase its preferred Equity Interests; providedthat (A) at the time thereof, and after giving effect thereto, no Defaultshall have occurred and be continuing and no Loans shall be outstanding and (B) theLeverage Ratio, determined, as of the end of the fiscal quarter of the Borrowermost recently then ended prior thereto for which financial statements shallhave been delivered pursuant to Section 5.04(a) or 5.04(b), on a proforma basis to give effect to such repurchase and the incurrence of anyIndebtedness in connection therewith, shall not exceed 3.50:1.00.

####  

### (b) The Borrower will not, and will not permit any Subsidiary (other than theExcluded Subsidiary) to, pay or make or agree to pay or make, directly orindirectly, any payment or other distribution (whether in cash, securities orother property) of or in respect of principal of or interest on anyIndebtedness, or any payment or other distribution (whether in cash, securitiesor other property), including any sinking fund or similar deposit, on accountof the purchase, redemption, retirement, acquisition, cancelation ortermination of any Indebtedness, except:

###  

#### (i) payments of or in respect of Indebtedness created under the Loan Documents;

####  

#### (ii) payments of regularly scheduled interest and regularly scheduled, or so long asno Loans are outstanding, mandatory principal payments, in each case as andwhen due in respect of any Indebtedness;

 

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#### (iii) the refinancing or replacement of Indebtedness with Replacement Indebtedness tothe extent permitted by Section 6.01;

####  

#### (iv) payments of secured Indebtedness that becomes due as a result of the voluntarysale or transfer of assets securing such Indebtedness in transactions permittedhereunder;

####  

#### (v) payments of Indebtedness required to be made pursuant to Section 6.04(c)(iv);

####  

#### (vi) payments of Indebtedness of any Loan Party to any other Loan Party;

####  

#### (vii) payments of, or in respect of, Indebtedness made solely with Equity Interests(other than Disqualified Stock);

####  

#### (viii) subject to Section 2.12(d), payments of Indebtedness made solely with theNet Proceeds from the issuance, after the Restatement Effective Date, of commonor preferred stock in the Borrower; and

####  

#### (ix) other payments of Indebtedness; provided that at the time each suchpayment is made, no Default shall have occurred and be continuing, or wouldresult therefrom and (B) immediately prior to, and after giving effect toeach such payment, no Loans shall be outstanding.

####  

## SECTION 6.11.  Limitations on Conduct of Business.  Without limiting Section 5.01(a), theBorrower will not permit any Subsidiary existing on the Restatement EffectiveDate that is not a Subsidiary Loan Party to engage in any business or line ofbusiness or conduct any business activities materially different from thebusiness, line of business or business activities conducted by such Subsidiaryon the Restatement Effective Date.

##  

## SECTION 6.12.  Concerning Janus Capital InternationalLimited.  (a)  In the event thatthe aggregate amount of the regulatory capital of Janus Capital InternationalLimited as of the end of any quarter, determined under the rules andregulations of the FSA, exceeds an amount equal to 150% of the minimum amountof the regulatory capital required to be maintained by Janus CapitalInternational Limited as of the end of such quarter pursuant to such rules andregulations, the Borrower will cause Janus Capital International Limited tomake, within 60 days following the end of such quarter and to the extent themaking thereof is not prohibited by applicable law or regulation, a dividend,distribution or other Restricted Payment in cash to Janus International HoldingLLC in an amount approximately equal to the amount of such excess.

##  

### (b)  Notwithstandinganything to the contrary in Section 6.04 or 6.09(b), at all times on andafter the Restatement Effective Date the Borrower shall cause Janus CapitalInternational Limited to be a wholly-owned subsidiary of Janus InternationalHolding LLC.

 

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# ARTICLE VII

#  

# EVENTS OF DEFAULT

#  

In case of the occurrence ofany of the following events (“Events of Default”):

 

##### (a) any representation or warranty made or deemed made by or on behalf of theBorrower or any Subsidiary to the Lenders or the Agent, or any report,certificate or other information furnished by the Borrower or any Subsidiary tothe Lenders or the Agent, in each case under or in connection with any LoanDocument, shall be incorrect in any material respect on the date as of which madeor furnished;

#####  

##### (b) nonpayment by the Borrower of principal of any Loan when due;

#####  

##### (c) nonpayment by the Borrower of interest upon any Loan or of any Fee or otherObligations (other than an amount referred to in clause (b) above) underany of the Loan Documents within five Business Days after the same becomes due;

#####  

##### (d) the breach by the Borrower of any of the terms or provisions of Section 5.07or Article VI; provided that, solely in the case of Section 6.07(c),such breach shall continue unremedied for a period of 10 days;

#####  

##### (e) the breach by the Borrower or any other Loan Party (other than a breach whichconstitutes an Event of Default under clause (a), (b), (c) or (d) above)of any of the terms or provisions of this Agreement or any other Loan Documentwhich is not remedied within 30 days after written notice from the Agentor any Lender;

#####  

##### (f) the failure of the Borrower or any Subsidiary (other than the ExcludedSubsidiary) to pay any Material Indebtedness; or the occurrence of any defaultor any change in control or similar event that under the terms of any agreementor instrument governing any Material Indebtedness shall cause, or permit theholder or holders of such Indebtedness or a trustee or other representativeacting on their behalf or, in the case of any Hedging Agreement, the applicablecounterparty, to cause, such Material Indebtedness to become due prior to itsstated maturity, or to require the prepayment, redemption, repurchase ordefeasance thereof prior to its stated maturity or, in the case of any HedgingAgreement, to cause the termination thereof; provided that this clause (f) shallnot apply to secured Indebtedness that becomes due as a result of the voluntarysale or transfer of the assets securing such Indebtedness;

#####  

##### (g) the Borrower or any Subsidiary shall (i) have an order for relief enteredwith respect to it under the Federal Bankruptcy Code, (ii) not pay, oradmit in writing its inability to pay, its debts generally as they become due, (iii) makea general assignment for the benefit of creditors, (iv) apply for, seek, 

 

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##### consent to or acquiesce inthe appointment of a receiver, custodian, trustee, examiner, liquidator orsimilar official for it or any substantial part of its property, (v) instituteany proceeding seeking an order for relief under the Federal Bankruptcy Code orseeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,winding up, liquidation, reorganization, arrangement, adjustment or compositionof it or its debts under any law relating to bankruptcy, insolvency orreorganization or relief of debtors or fail to file an answer or other pleadingdenying the material allegations of any such proceeding filed against it, (vi) takeany corporate action to authorize or effect any of the foregoing actions setforth in this clause (g) or (vii) fail to contest in good faithany appointment or proceeding described in the following clause (h);

#####  

##### (h) without the application, approval or consent of the Borrower or any Subsidiary,a receiver, trustee, examiner, liquidator or similar official shall beappointed for the Borrower or any Subsidiary or any substantial part of itsproperty, or a proceeding described in subclause (v) of the precedingclause (g) shall be instituted against the Borrower or any Subsidiaryand such appointment shall continue undischarged or such proceeding shallcontinue undismissed or unstayed, in each case, for a period of60 consecutive days;

#####  

##### (i) any court, government or governmental agency shall condemn, seize or otherwiseappropriate, or take custody or control of all of the property of the Borroweror any Subsidiary or an amount of such property or assets having depreciatedbook values (determined in accordance with GAAP) that in the aggregate for allproperties and assets so appropriated or taken during the term of thisAgreement exceed 7.5% of Consolidated Total Assets on any date ofdetermination;

#####  

##### (j) the Borrower or any Subsidiary shall fail within 30 days to pay, bond orotherwise discharge any judgment or order for the payment of money in excess of$25,000,000 (or its equivalent in any other currency) that is not stayed onappeal or otherwise being appropriately contested in good faith; providedthat any such judgment or order shall not give rise to an Event of Defaultunder this clause (j) if and so long as (i) the amount of suchjudgment or order which remains unsatisfied is covered by a valid and bindingpolicy of insurance between the Borrower or such Subsidiary and a financiallyresponsible insurer covering full payment of such unsatisfied amount and (ii) suchinsurer has acknowledged coverage of the amount of such judgment or order;

#####  

##### (k) the Unfunded Liabilities of all Plans shall exceed in the aggregate$25,000,000, or any Reportable Event shall occur in connection with any Planthat could reasonably be expected to result in liability of the Borrower or anymember of the Controlled Group in an aggregate amount exceeding $25,0000,000 orany Withdrawal Liability in excess of $25,000,000 shall be incurred withrespect to any Multiemployer Plan or the Borrower or any member of theControlled Group has received any notice concerning the imposition ofWithdrawal Liability in excess of $25,000,000 or a determination that a 

 

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##### Multiemployer Plan withrespect to which the potential Withdrawal Liability of the Borrower or anymember of the Controlled Group would exceed $25,000,000 is, or is expected tobe, insolvent or in reorganization, within the meaning of Title IV ofERISA, or in endangered or critical status, within the meaning of Section 305of ERISA or Section 432 of the Code;

#####  

##### (l) a Change in Control shall have occurred;

#####  

##### (m) any Loan Document shall cease at any time to be valid, enforceable or in fullforce and effect, except in accordance with the terms thereof, or the Borroweror any Subsidiary shall so assert in writing;

#####  

##### (n) any Lien purported to be created under any Security Document shall cease to be,or shall be asserted by any Loan Party not to be, a valid and perfected Lien onany material Collateral, with the priority required by the applicable SecurityDocument, except as a result of a sale or transfer of the applicable Collateralin a transaction permitted under the Loan Documents; or

#####  

##### (o) any Guarantee purported to be created under any Loan Document shall cease tobe, or shall be asserted by any Loan Party not to be, in full force and effect,except upon the consummation of any transaction permitted under this Agreementas a result of which the Subsidiary Loan Party providing such Guarantee ceasesto be a Subsidiary or upon the termination of such Loan Document in accordancewith its terms;

#####  

then, and in every suchevent (other than an event with respect to the Borrower described inclause (g) or (h) above), and at any time thereafter during thecontinuance of such event, the Agent, at the request of the Required Lenders,shall, by notice to the Borrower, take either or both of the following actions,at the same or different times: (i) terminate forthwith the Commitmentsand (ii) declare the Loans then outstanding to be forthwith due andpayable in whole or in part, whereupon the principal of the Loans so declaredto be due and payable, together with accrued interest thereon and any unpaidaccrued Fees and all other liabilities accrued hereunder and under any otherLoan Document, shall become forthwith due and payable, without presentment,demand, protest or any other notice of any kind, all of which are hereby expresslywaived by the Borrower, anything contained herein or in any other Loan Documentto the contrary notwithstanding; and in any event with respect to the Borrowerdescribed in clause (g) or (h) above, the Commitments shallautomatically terminate and the principal of the Loans then outstanding,together with accrued interest thereon and any unpaid accrued Fees and allother liabilities accrued hereunder and under any other Loan Document, shallautomatically become due and payable, without presentment, demand, protest orany other notice of any kind, all of which are hereby expressly waived by theBorrower, anything contained herein or in any other Loan Document to thecontrary notwithstanding.

 

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# ARTICLE VIII

#  

# THE AGENT

#  

Each of the Lenders and theSyndication Agent hereby irrevocably appoints the entity named as Agent in theheading of this Agreement to serve as administrative and collateral agent underthe Loan Documents, and authorizes the Agent to take such actions and toexercise such powers as are delegated to the Agent by the terms of the LoanDocuments, together with such actions and powers as are reasonably incidentalthereto.  The Lenders and the SyndicationAgent hereby authorize the Agent, and the Agent hereby agrees, to hold anyCollateral pledged under any Foreign Pledge Agreement governed by the laws ofEngland or Wales in trust for the benefit of the Secured Parties.  The provisions of this Article aresolely for the benefit of the Lenders, and none of the Borrower nor any otherLoan Party shall have any rights as a third party beneficiary of any suchprovisions.

 

The Person serving as theAgent hereunder shall have the same rights and powers in its capacity as aLender as any other Lender and may exercise the same as though it were not theAgent, and such Person and its Affiliates may accept deposits from, lend moneyto, act as the financial advisor or in any other advisory capacity for andgenerally engage in any kind of business with the Borrower or any Subsidiary orother Affiliate thereof as if such Person were not the Agent hereunder andwithout any duty to account therefor to the Lenders.

 

The Agent shall not have anyduties or obligations except those expressly set forth in the LoanDocuments.  Without limiting thegenerality of the foregoing, (a) the Agent shall not be subject to anyfiduciary or other implied duties, regardless of whether a Default has occurredand is continuing, (b) the Agent shall not have any duty to take anydiscretionary action or to exercise any discretionary power, exceptdiscretionary rights and powers expressly contemplated by the Loan Documentsthat the Agent is required to exercise as directed in writing by the RequiredLenders (or such other number or percentage of the Lenders as shall benecessary under the circumstances as provided in the Loan Documents), providedthat the Agent shall not be required to take any action that, in its opinion,could expose the Agent to liability or be contrary to any Loan Document orapplicable law, and (c) except as expressly set forth in the LoanDocuments, the Agent shall not have any duty to disclose, and shall not beliable for the failure to disclose, any information relating to the Borrower,any Subsidiary or any Affiliate of any of the foregoing that is communicated toor obtained by the Person serving as Agent or any of its Affiliates in anycapacity.  The Agent shall not be liablefor any action taken or not taken by it with the consent or at the request ofthe Required Lenders (or such other number or percentage of the Lenders asshall be necessary, or as the Agent shall believe in good faith to benecessary, under the circumstances as provided in Section 9.08) or in theabsence of its own gross negligence or wilful misconduct.  The Agent shall be deemed not to haveknowledge of any Default unless and until written notice thereof is given tothe Agent by the Borrower or a Lender, and the Agent shall not be responsiblefor or have any duty to ascertain or inquire into (i) any statement,warranty or representation made in or in connection with any Loan Document, (ii) thecontents of any 

 

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certificate, report or otherdocument delivered thereunder or in connection therewith, (iii) theperformance or observance of any of the covenants, agreements or other terms orconditions set forth in any Loan Document or the occurrence of any Default, (iv) thevalidity, enforceability, effectiveness or genuineness of any Loan Document orany other agreement, instrument or document, or (v) the satisfaction ofany condition set forth in Article IV or elsewhere in any Loan Document,other than to confirm receipt of items expressly required to be delivered tothe Agent or satisfaction of any condition that expressly refers to the mattersdescribed therein being acceptable or satisfactory to the Agent.

 

The Agent shall be entitledto rely, and shall not incur any liability for relying, upon any notice,request, certificate, consent, statement, instrument, document or other writing(including any electronic message, Internet or intranet website posting orother distribution) believed by it to be genuine and to have been signed, sentor otherwise authenticated by the proper Person (including, if applicable, aFinancial Officer of such Person).  TheAgent also may rely, and shall not incur any liability for relying, upon anystatement made to it orally or by telephone and believed by it to be made bythe proper Person (including, if applicable, a Financial Officer or aResponsible Officer of such Person).  TheAgent may consult, including in connection with any determination by the Agentpursuant to its authority set forth in the definition of the term “Collateraland Guarantee Requirement”, with legal counsel (who may be counsel for theBorrower), independent accountants and other experts selected by it, and shallnot be liable for any determination made or action taken or not taken by it inaccordance with the advice of any such counsel, accountants or experts.

 

The Agent may perform any ofand all its duties and exercise its rights and powers hereunder or under anyother Loan Document by or through any one or more sub-agents appointed by theAgent.  The Agent and any such sub-agentmay perform any of and all their duties and exercise their rights and powersthrough their respective Related Parties. The exculpatory provisions of this Article VIII shall apply to anysuch sub-agent and to the Related Parties of the Agent and any such sub-agent,and shall apply to their respective activities in connection with thesyndication of the credit facilities provided for herein as well as activitiesas Agent.

 

Subject to the appointmentand acceptance of a successor Agent as provided in this paragraph, the Agentmay resign at any time by notifying the Lenders and the Borrower.  Upon receipt of any such notice ofresignation, the Required Lenders shall have the right, after consultation withthe Borrower, to appoint a successor.  Ifno successor shall have been so appointed by the Required Lenders and shallhave accepted such appointment within 30 days after the retiring Agent givesnotice of its resignation, then the retiring Agent may, on behalf of theLenders, appoint a successor Agent, which shall be a bank with an office in NewYork, New York, having a combined capital and surplus of at least $500,000,000or an Affiliate of any such bank.  Uponthe acceptance of its appointment as Agent hereunder by a successor, suchsuccessor shall succeed to and become vested with all the rights, powers,privileges and duties of the retiring Agent, and the retiring Agent shall bedischarged from its duties and obligations hereunder and under the other LoanDocuments.  After the Agent’s resignationhereunder and under the other 

 

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Loan Documents, theprovisions of this Article VIII and Section 9.05 shall continue ineffect for the benefit of such retiring Agent, its sub agents and theirrespective Related Parties in respect of any actions taken or omitted to betaken by any of them while it was acting as Agent.

 

Each Lender acknowledgesthat it has, independently and without reliance upon the Agent, the arrangersor any other Lender, or any of the Related Parties of any of the foregoing, andbased on such documents and information as it has deemed appropriate, made itsown credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,independently and without reliance upon the Agent, the arrangers or any otherLender, or any of the Related Parties of any of the foregoing, and based onsuch documents and information as it shall from time to time deem appropriate,continue to make its own decisions in taking or not taking action under orbased upon this Agreement, any other Loan Document or any related agreement orany document furnished hereunder or thereunder.

 

Each Lender, by deliveringits signature page to the Amendment Agreement or delivering its signature page toan Assignment and Assumption pursuant to which it shall become a Lenderhereunder, shall be deemed to have acknowledged receipt of, and consented toand approved, each Loan Document and each other document required to bedelivered to, or be approved by or satisfactory to, the Agent or the Lenders onthe Restatement Effective Date.

 

Each Lender agrees (a) toreimburse the Agent, on demand, in the amount of its pro rata share (based onits Commitment hereunder or, if the Total Commitment shall be terminated, thepercentage it holds of the aggregate outstanding principal amount of the Loans)of any expenses incurred for the benefit of the Lenders by the Agent, includingcounsel fees and compensation of agents and employees paid for servicesrendered on behalf of the Lenders, which shall not have been reimbursed by theBorrower and (b) to indemnify and hold harmless the Agent and any of itsRelated Parties, on demand, in the amount of such pro rata share, from andagainst any and all claims for liabilities, Taxes, obligations, losses,damages, penalties, actions, judgments, suits, costs, expenses or disbursementsof any kind or nature whatsoever which may be imposed on, incurred by orasserted against it in its capacity as the Agent or any of them in any wayrelating to or arising out of this Agreement or any other Loan Document or anyaction taken or omitted by it or any of them under this Agreement or any otherLoan Document, to the extent the same shall not have been reimbursed by theBorrower; provided that no Lender shall be liable to the Agent or any ofits Related Parties for any portion of such claim for liabilities, obligations,losses, damages, penalties, actions, judgments, suits, costs, expenses ordisbursements to the extent that such claim is determined by a court ofcompetent jurisdiction by final and nonappealable judgment to have resultedfrom the gross negligence or wilful misconduct of the Agent or any of itsRelated Parties.  The obligations of theLenders under this Article VIII shall survive the payment of all amountsdue under any Loan Document and the termination of this Agreement.

 

No Secured Party shall haveany right individually to realize upon any of the Collateral or to enforce anysecurity interest in the Collateral or Guarantee of the 

 

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Obligations, it beingunderstood and agreed that all powers, rights and remedies under the LoanDocuments may be exercised solely by the Agent on behalf of the Secured Partiesin accordance with the terms thereof.  Inthe event of a foreclosure by the Agent on any of the Collateral pursuant to apublic or private sale or other disposition, the Agent or any Lender may be thepurchaser or licensor of any or all of such Collateral at any such sale orother disposition, and the Agent, as agent for and representative of theSecured Parties (but not any Lender or Lenders in its or their respectiveindividual capacities unless Required Lenders shall otherwise agree in writing)shall be entitled, for the purpose of bidding and making settlement or paymentof the purchase price for all or any portion of the Collateral sold at any suchpublic sale, to use and apply any of the Obligations as a credit on account ofthe purchase price for any collateral payable by the Agent on behalf of theSecured Parties at such sale or other disposition.  Each Secured Party, whether or not a partyhereto, will be deemed, by its acceptance of the benefits of the Collateral andof the Guarantees of the Obligations provided under the Loan Documents, to haveagreed to the foregoing provisions.

 

Notwithstanding anythingherein to the contrary, no Person named on the cover page of thisAgreement as an Arranger or Syndication Agent shall have any duties orobligations under this Agreement or any other Loan Document (except in itscapacity, as applicable, as a Lender), but all such Persons shall have thebenefit of the indemnities provided for hereunder.

 

# ARTICLE IX

#  

# MISCELLANEOUS

#  

## SECTION 9.01.  Notices.  Except as otherwise specifically provided forin this Agreement (including, without limitation, in Sections 5.04 and9.17), notices and other communications provided for herein shall be in writingand shall be delivered by hand or overnight courier service, mailed or sent byfacsimile transmission as follows:

##  

##### (a) if to the Borrower, to it at 151 Detroit Street, Denver, CO 80206 Attentionof Senior Vice President and Treasurer (Fax No. (303) 316-5651);with a copy to General Counsel (Fax No. (303) 316-5728);

#####  

##### (b) if to the Agent, to it at Citigroup Global Loans, 1615 Brett Road, OPS 3, NewCastle, DE 19720, Attention of Mark Rosenthal (Fax No. (212) 994-0961);and

#####  

##### (c) if to a Lender, to it at its address (or fax number) set forth in itsAdministrative Questionnaire.

#####  

All notices and othercommunications given to any party hereto in accordance with the provisions ofthis Agreement shall be deemed to have been given on the date of receipt ifdelivered by hand or overnight courier service or sent by facsimile, or on thedate five Business Days after dispatch by certified or registered mail ifmailed, in each case delivered, sent or mailed (properly addressed) to suchparty as provided in this Section or 

 

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in accordance with thelatest unrevoked direction from such party given in accordance with thisSection; provided that, unless otherwise specifically provided in Article II,all notices given under Article II shall be delivered by hand or overnightcourier service or sent by facsimile.

 

## SECTION 9.02.  Survival of Agreement.  All covenants, agreements, representationsand warranties made by the Borrower herein and in the certificates or otherinstruments prepared or delivered in connection with or pursuant to thisAgreement or any other Loan Document shall be considered to have been reliedupon by the Lenders and shall survive the making by the Lenders of the Loans,regardless of any investigation made by or on behalf of the Agent or theLenders, and shall continue in full force and effect as long as the principalof or any accrued interest on any Loan or any Fee or any other amount payableunder this Agreement or any other Loan Document is outstanding and unpaid andso long as the Commitments have not been terminated.

##  

## SECTION 9.03.  Effectiveness.  This Agreement shall become effective asprovided in the Amendment Agreement. Delivery of an executed signature page of any Loan Document byfacsimile transmission or electronic transmission (PDF) shall be effective asdelivery of a manually executed counterpart thereof.

##  

## SECTION 9.04.  Successors and Assigns.  (a)  The provisions of this Agreementshall be binding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns permitted hereby, except that (i) theBorrower may not assign or otherwise transfer any of its rights or obligationshereunder without the prior written consent of the Agent and each Lender (andany attempted assignment or transfer by the Borrower without such consent shallbe null and void) and (ii) no Lender may assign or otherwise transfer itsrights or obligations hereunder except in accordance with this Section 9.04.  Nothing in this Agreement, expressed orimplied, shall be construed to confer upon any Person (other than the partieshereto, their respective successors and assigns permitted hereby, participants(to the extent provided in paragraph (e) of this Section 9.04), theArrangers, the Syndication Agent and the Indemnitees) any legal or equitableright, remedy or claim under or by reason of this Agreement.

##  

### (b) Each Lender may assign to one or more assignees all or a portion of itsinterests, rights and obligations under this Agreement (including all or aportion of its Commitment and the Standby Loans at the time owing to it); provided,however, that (i) each such assignment shall be to an EligibleAssignee, (ii) each such assignment shall be of a constant, and not avarying, percentage of all the assigning Lender’s rights and obligations underthis Agreement, (iii) except in the case of an assignment of the entireremaining amount of the Commitment or Loans (subject to, in the case ofCompetitive Loans, the final sentence of this paragraph) the amount of theCommitment of the assigning Lender subject to each such assignment (determinedas of the date the Assignment and Assumption with respect to such assignment isdelivered to the Agent) shall not be less than $10,000,000 and shall be anintegral multiple of $1,000,000, (iv) the parties to each such assignmentshall execute and deliver to the Agent an Assignment and Assumption and theLenders party to such Assignment and Assumption shall pay to the Agent aprocessing and recordation fee of 

 

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### $3,500 (except that norecordation fee shall be required if the assignee is an Affiliate of theassignor) and (v) the assignee, if it shall not be a Lender, shall deliverto the Agent an Administrative Questionnaire. Upon acceptance and recording pursuant to paragraph (e) ofthis Section, from and after the effective date specified in each Assignmentand Assumption, (A) the assignee thereunder shall be a party hereto and,to the extent of the interest assigned by such Assignment and Assumption, havethe rights and obligations of a Lender under this Agreement and (B) theassigning Lender thereunder shall, to the extent of the interest assigned bysuch Assignment and Assumption, be released from its obligations under thisAgreement (and, in the case of an Assignment and Assumption covering all or theremaining portion of an assigning Lender’s rights and obligations under thisAgreement, such Lender shall cease to be a party hereto (but shall continue tobe entitled to the benefits of Sections 2.13, 2.15, 2.19 and 9.05, as wellas to any Fees accrued for its account hereunder and not yet paid)).  Notwithstanding the foregoing, any Lenderassigning its rights and obligations under this Agreement may retain anyCompetitive Loans made by it outstanding at such time, and in such case shallretain its rights hereunder in respect of any Loans so retained until suchLoans have been repaid in full in accordance with this Agreement.

###  

### (c) The Agent, acting solely for this purpose as an agent of the Borrower, shallmaintain at one of its offices a copy of each Assignment and Assumptiondelivered to it and a register for the recordation of the names and addressesof the Lenders, and the Commitment of, and principal amount of the Loans owingto, each Lender pursuant to the terms hereof from time to time (the “Register”).The entries in the Register shall be conclusive in the absence of manifesterror, and the Borrower, the Agent and the Lenders may treat each Person whosename is recorded in the Register pursuant to the terms hereof as a Lenderhereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and anyLender, at any reasonable time and from time to time upon reasonable priornotice.

###  

### (d) Upon its receipt of a duly completed Assignment and Assumption executed by anassigning Lender and an assignee, an Administrative Questionnaire completed inrespect of the assignee (unless the assignee shall already be a Lenderhereunder), the processing and recordation fee referred to in paragraph (b) aboveand, if required, the written consent of the Borrower and the Agent to suchassignment, the Agent shall (i) accept such Assignment and Assumption and (ii) recordthe information contained therein in the Register.

###  

### (e) (i)  Each Lender may, without the consent of the Borrower or the Agent, sellto any Person (other than the Borrower) that shall have represented to suchLender that such Person is not (A) an Affiliate of the Borrower or (B) aninvestment manager, any investment company or any similar entity that, in eachcase, is managed or advised by the Borrower or an Affiliate of the Borrower,participations in all or a portion of its rights and obligations under thisAgreement (including all or a portion of its Commitment and the Loans owing toit); provided that (x) such Lender’s obligations under thisAgreement shall remain unchanged, (y) such Lender shall remain solelyresponsible to the other parties hereto for the performance of such obligationsand (z) the Borrower, the Agent and the other Lenders shall continue to 

 

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### deal solely and directlywith such Lender in connection with such Lender’s rights and obligations underthis Agreement, and such Lender shall retain the sole right to enforce theobligations of the Borrower relating to the Loans and to approve any amendment,modification or waiver of any provision of this Agreement; provided howeverthat the agreement or instrument pursuant to which such Lender sells aparticipation may provide that such Lender will not, without the consent of theparticipant, agree to any amendment, modification or waiver described in thefirst proviso to Section 9.08(b) or in Section 9.08A.  A participant shall be entitled to thebenefit of the cost protection provisions contained in Sections 2.13, 2.15and 2.19 to the same extent as it were a Lender; provided, however,that a participant shall not be entitled to receive any more than the sellingLender would have received had it not sold the participation.

###  

#### (ii) Each Lender that sells a participation shall, acting solely for this purpose asan agent of the Borrower, maintain a record of each participant and theprincipal amounts (and stated interest) of each participant’s interest in theLoans or other obligations under this Agreement (the “Participant Register”).  The entries in the Participant Register shallbe conclusive absent manifest error, and such Lender shall treat each Personwhose name is recorded in the Participant Register as the owner of suchparticipation for all purposes of this Agreement.

####  

### (f) Notwithstanding anything to the contrary contained herein, any Lender (a “GrantingLender”) may grant to a special purpose funding vehicle (an “SPC”)of such Granting Lender, identified as such in writing from time to time by theGranting Lender to the Agent and the Borrower, the option to provide to theBorrower all or any part of any Loan that such Granting Lender would otherwisebe obligated to make to the Borrower pursuant to Section 2.01, providedthat (i) nothing herein shall constitute a commitment to make any Loan byany SPC, (ii) if an SPC elects not to exercise such option or otherwisefails to provide all or any part of such Loan, the Granting Lender shall beobligated to make such Loan pursuant to the terms hereof, (iii) suchGranting Lender’s other obligations under this Agreement shall remainunchanged, (iv) such Granting Lender shall remain solely responsible tothe other parties hereto for the performance of such obligations and (v) theBorrower, the Agent and the other Lenders shall continue to deal solely anddirectly with such Granting Lender in connection with such Granting Lender’srights and obligations under this Agreement. The making of a Loan by an SPC hereunder shall utilize the Commitment ofthe Granting Lender to the same extent, and as if, such Loan were made by theGranting Lender.  Each party heretohereby agrees that no SPC shall be liable for any indemnity or similar paymentobligation under this Agreement (all liability for which shall remain with therelated Granting Lender).  In furtheranceof the foregoing, each party hereto hereby agrees (which agreement shallsurvive the termination of this Agreement) that, prior to the date that is oneyear and one day after the payment in full of all outstanding seniorindebtedness of any SPC, it will not institute against, or join any otherPerson in instituting against, such SPC any bankruptcy, reorganization,arrangement, insolvency or liquidation proceedings or similar proceedings underthe laws of the United States or any State thereof.  In addition, notwithstanding anything to thecontrary contained in this Section or in Section 9.16, any SPC may (i) withnotice to, but without the prior written consent of, the Borrower or the Agentand without 

 

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### paying any processing feetherefor, assign all or a portion of its interests in any Loans to its GrantingLender or to any financial institutions providing liquidity and/or creditfacilities to or for the account of such SPC to fund the Loans made by such SPCor to support the securities (if any) issued by such SPC to fund such Loans and(ii) disclose on a confidential basis, to the extent such disclosure wouldbe permitted under Section 9.16 if such SPC were a Lender, any non-publicinformation relating to its Loans to any rating agency, commercial paper dealeror provider of a surety, guarantee or credit or liquidity enhancement to suchSPC.

###  

### (g) Any Lender may at any time pledge or assign a security interest in all or anyportion of its rights under this Agreement to secure obligations of suchLender, including any pledge or assignment to secure obligations to a FederalReserve Bank, and this Section 9.04 shall not apply to any such pledge orassignment of a security interest; provided that no such pledge orassignment of a security interest shall release a Lender from any of itsobligations hereunder or substitute any such pledgee or assignee for suchLender as a party hereto.

###  

## SECTION 9.05.  Expenses; Indemnity.  (a)  The Borrower agrees to pay allreasonable and invoiced out-of-pocket expenses incurred by the Agent and itsAffiliates in connection with the arrangement and syndication of the creditfacility established hereby, the preparation of this Agreement and the otherLoan Documents and any amendments, modifications or waivers of the provisionshereof or thereof (whether or not the transactions hereby contemplated shall beconsummated and except for such costs and expenses incurred after thetermination of this Agreement), or incurred by the Agent or any Lender inconnection with the enforcement or protection of its rights in connection withthis Agreement, the other Loan Documents or the Loans made hereunder, includingthe reasonable and invoiced fees, charges and disbursements of Cravath, Swaine &Moore LLP and, in connection with any such enforcement or protection, thereasonable fees, charges and disbursements of any other counsel for the Agentor any Lender (it being agreed that, except in connection with any suchenforcement or protection, the Borrower shall be responsible for the fees,charges and disbursements of only one counsel unless, in the judgment of theAgent, additional counsel shall be required as a result of any conflict ofinterests).  The Borrower further agreesthat it shall indemnify the Lenders from and hold them harmless against anydocumentary Taxes that arise from or are connected to the execution anddelivery of this Agreement or any of the other Loan Documents.

##  

### (b) The Borrower agrees to indemnify the Agent (and any sub-agent thereof), eachLender, the Arrangers, the Syndication Agent, and each Related Party of any ofthe foregoing (each such Person being called an “Indemnitee”) against,and to hold each Indemnitee harmless from, any and all claims, liabilities andexpenses (including reasonable and invoiced counsel fees, charges anddisbursements of one counsel selected by the Agent for all the Indemnitees,such local counsel as the Agent may in good faith deem advisable and, in theevent the Agent shall have determined that a conflict of interest makes itinadvisable for a single counsel to represent all the Indemnitees, suchadditional counsel as may be required by reason of such conflict), incurred byor asserted against any Indemnitee arising out of or in connection with 

 

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### (i) the execution ordelivery of this Agreement or any other Loan Document or any agreement orinstrument contemplated thereby, the performance by the parties thereto oftheir respective obligations thereunder or the consummation of the Transactionsand the other transactions contemplated thereby, (ii) the use of theproceeds of the Loans or (iii) any claim, litigation, investigation orproceeding relating to any of the foregoing, whether based on contract, tort orany other theory and whether initiated against or by any party to thisAgreement or any other Loan Document, any Affiliate of any of the foregoing orany third party (and regardless of whether any Indemnitee is a party thereto); providedthat such indemnity shall not, as to any Indemnitee, be available to the extentthat such claim (whether brought by a Lender or any other Person), damage,liability or expense is determined by a court of competent jurisdiction byfinal and nonappealable judgment to have resulted from (x) the grossnegligence or wilful misconduct of such Indemnitee or (y) the materialbreach of such Indemnitee’s obligations under this Agreement or any other LoanDocument or any agreement or instrument contemplated thereby.  Each of the parties hereto also agrees not toassert any claim for special, indirect, consequential or punitive damagesagainst any Loan Party, the Agent, any Arranger, the Syndication Agent, anyLender or any Related Party of any of the foregoing on any theory of liability,arising out of or otherwise relating to this Agreement, any of the transactionscontemplated herein or the actual or proposed use of proceeds of the Loans.

###  

### (c) The provisions of this Section shall remain operative and in full forceand effect regardless of the expiration of the term of this Agreement, theconsummation of the transactions contemplated hereby, the repayment of any ofthe Loans, the invalidity or unenforceability of any term or provision of thisAgreement or any other Loan Document or any investigation made by or on behalfof the Agent or any Lender.  All amountsdue under this Section shall be payable on written demand therefor.

###  

## SECTION 9.06.  Right of Setoff.  If an Event of Default shall have occurredand be continuing, each Lender and each of its Affiliates is hereby authorizedat any time and from time to time, to the fullest extent permitted by law, toset off and apply any and all deposits (general or special, time or demand,provisional or final) at any time held and other obligations at any time owingby such Lender or Affiliate to or for the credit or the account of the Borroweragainst any of and all the obligations of the Borrower now or hereafterexisting under this Agreement and other Loan Documents owed to by such Lender,irrespective of whether or not such Lender shall have made any demand underthis Agreement or such other Loan Document and although such obligations may beunmatured.  The rights of each Lender andeach Affiliate under this Section are in addition to other rights andremedies (including other rights of setoff) that such Lender and such Affiliatemay have.

##  

## SECTION 9.07.  Applicable Law.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTSSHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OFNEW YORK.

 

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## SECTION 9.08.  Waivers; Amendment.  (a)  No failure or delay of the Agent orany Lender in exercising any power or right hereunder shall operate as a waiverthereof, nor shall any single or partial exercise of any such right or power,or any abandonment or discontinuance of steps to enforce such a right or power,preclude any other or further exercise thereof or the exercise of any otherright or power.  The rights and remediesof the Agent and the Lenders hereunder and under the other Loan Documents are cumulativeand are not exclusive of any rights or remedies which they would otherwisehave.  No waiver of any provision of thisAgreement or any other Loan Document or consent to any departure by theBorrower therefrom shall in any event be effective unless the same shall bepermitted by paragraph (b) below, and then such waiver or consentshall be effective only in the specific instance and for the purpose for whichgiven.  No notice or demand on theBorrower in any case shall entitle the Borrower to any other or further noticeor demand in similar or other circumstances.

##  

### (b)  Neither thisAgreement nor any provision hereof may be waived, amended or modified exceptpursuant to an agreement or agreements in writing entered into by the Borrowerand the Required Lenders; provided, however, that no suchagreement shall (i) decrease the principal amount of, or extend thematurity of or any scheduled principal payment date or date for the payment ofany interest on any Loan, or waive or excuse any such payment or any partthereof, or decrease the rate of interest on any Loan, without the priorwritten consent of each Lender affected thereby, (ii) change or extend theCommitment or decrease or extend the date for payment of the Facility Fees orUtilization Fees of any Lender without the prior written consent of suchLender, (iii) amend or modify the provisions of Section 2.16, theprovisions of this Section or the definition of “Required Lenders” withoutthe prior written consent of each Lender or (iv) release Janus CapitalManagement LLC from the LLC Guarantee, or limit its liability in respect of theLLC Guarantee, in any case without the prior written consent of each Lender; providedfurther that no such agreement shall amend, modify or otherwise affectthe rights or duties of the Agent or the Swingline Lender hereunder without theprior written consent of the Agent or the Swingline Lender, as the case maybe.  Notwithstanding the foregoing, anyprovision of this Agreement may be amended by an agreement in writing enteredinto by the Borrower, the Required Lenders and the Agent if (A) by theterms of such agreement the Commitment of each Lender not consenting to theamendment provided for therein shall terminate upon the effectiveness of suchamendment and (B) at the time such amendment becomes effective, eachLender not consenting thereto receives payment in full of the principal of andinterest accrued on each Loan made by it and all other amounts owing to it oraccrued for its account under this Agreement; provided that the Borrowermay prevent any such amendment from becoming effective by a notice delivered tothe Agent at any time prior to such effectiveness, in which case theCommitments of the non-consenting Lenders will not terminate and their Loanswill not be required to be repaid.  EachLender shall be bound by any waiver, amendment or modification authorized bythis Section and any consent by any Lender pursuant to this Section shallbind any Person subsequently acquiring a Loan from it.

###  

SECTION 9.08A.  Certain Amendments.  (a)  Notwithstanding any other provisioncontained herein, (i) all references in Section 9.08(b) to theFacility Fees and

 

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the Utilization Fees will bedeemed to be references to the Commitment Fees (it being understood that theaggregate amount of the fees and interest payable to the Lenders hereunder willunder all circumstances be greater than under the Existing Credit Agreement)and (ii) all references in Section 9.08(b) to the SwinglineLender shall be disregarded.  Noagreement referred to in Section 9.08 shall (A) release the Borroweror any other material Loan Party from its Guarantee under the CollateralAgreement (except as expressly provided herein or in the Collateral Agreement),or limit its liability in respect of such Guarantee, without the prior writtenconsent of each Lender or (B) release all or substantially all of theCollateral from the Liens of the Security Documents, without the prior writtenconsent of each Lender.

 

(b)  Subject to Section 9.08and paragraph (a) of this Section 9.08A, neither any Loan Document(other than this Agreement or the Fee Letter) nor any provision thereof may beamended or modified except pursuant to an agreement or agreements in writing enteredinto by the Agent and the Loan Party or Loan Parties that are party thereto, ineach case with the consent of the Required Lenders.

 

## SECTION 9.09.  Interest Rate Limitation.  Notwithstanding anything herein to thecontrary, if at any time the applicable interest rate, together with all feesand charges which are treated as interest under applicable law (collectivelythe “Charges”), as provided for herein or in any other document executedin connection herewith, or otherwise contracted for, charged, received, takenor reserved by any Lender, shall exceed the maximum lawful rate (the “MaximumRate”) which may be contracted for, charged, taken, received or reserved bysuch Lender in accordance with applicable law, the rate of interest payable onthe Loans made by such Lender, together with all Charges payable to suchLender, shall be limited to the Maximum Rate.

##  

## SECTION 9.10.  Entire Agreement.  This Agreement and the other Loan Documentsconstitute the entire contract between the parties relative to the subjectmatter hereof.  Any previous agreementamong the parties with respect to the subject matter hereof is superseded bythis Agreement and the other Loan Documents. Nothing in this Agreement or in the other Loan Documents, expressed orimplied, is intended to confer upon any party other than the parties hereto andthereto any rights, remedies, obligations or liabilities under or by reason ofthis Agreement or the other Loan Documents.

##  

## SECTION 9.11.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ATRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUTOF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOANDOCUMENTS.  EACH PARTY HERETO (A) CERTIFIESTHAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OFLITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THATIT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT 

 

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## AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

##  

## SECTION 9.12.  Severability.  In the event any one or more of theprovisions contained in this Agreement or in any other Loan Document should beheld invalid, illegal or unenforceable in any respect, the validity, legalityand enforceability of the remaining provisions contained herein and thereinshall not in any way be affected or impaired thereby.  The parties shall endeavor in good-faithnegotiations to replace the invalid, illegal or unenforceable provisions withvalid provisions the economic effect of which comes as close as possible tothat of the invalid, illegal or unenforceable provisions.

##  

## SECTION 9.13.  Counterparts.  This Agreement may be executed in two or morecounterparts, each of which shall constitute an original but all of which whentaken together shall constitute but one contract.

##  

## SECTION 9.14.  Headings.  Article and Section headings andthe Table of Contents used herein are for convenience of reference only, arenot part of this Agreement and are not to affect the construction of, or to betaken into consideration in interpreting, this Agreement.

##  

## SECTION 9.15.  Jurisdiction; Consent to Service ofProcess.  (a)  Each party tothis Agreement hereby irrevocably and unconditionally submits, for itself andits property, to the exclusive jurisdiction of any New York State court orFederal court of the United States of America sitting in New York City,and any appellate court from any thereof, in any action or proceeding arisingout of or relating to this Agreement or the other Loan Documents, or forrecognition or enforcement of any judgment, and each of the parties heretohereby irrevocably and unconditionally agrees that all claims in respect of anysuch action or proceeding may be heard and determined in such New YorkState or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that afinal judgment in any such action or proceeding shall be conclusive and may beenforced in other jurisdictions by suit on the judgment or in any other mannerprovided by law.  Nothing in thisAgreement shall affect any right that any party may otherwise have to bring anyaction or proceeding relating to this Agreement or the other Loan Documentsagainst any other party or its properties in the courts of any jurisdiction.

##  

### (b) Each party to this Agreement hereby irrevocably and unconditionally waives, tothe fullest extent it may legally and effectively do so, any objection which itmay now or hereafter have to the laying of venue of any suit, action orproceeding arising out of or relating to this Agreement or the other LoanDocuments in any New York State or Federal court.  Each of the parties hereto hereby irrevocablywaives, to the fullest extent permitted by law, the defense of an inconvenientforum to the maintenance of such action or proceeding in any such court.

###  

### (c) Each party to this Agreement irrevocably consents to service of process in themanner provided for notices in Section 9.01.  Nothing in this Agreement 

 

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### will affect the right of anyparty to this Agreement to serve process in any other manner permitted by law.

###  

## SECTION 9.16.  Confidentiality; Material Non-PublicInformation.  (a)  Each Lenderagrees to keep confidential and not to disclose (and to cause its officers,directors, employees, agents, Affiliates and representatives to keepconfidential and not to disclose) all Information (as defined below), exceptthat such Lender shall be permitted to disclose Information (i) to such ofits officers, directors, employees, advisors, agents, Affiliates andrepresentatives as need to know such Information in connection with theservicing and protection of its interests in respect of its Loans andCommitments, the Loan Documents and the Transactions; (ii) to the extent requiredby applicable laws and regulations or by any subpoena or similar legal processor requested by any Governmental Authority having or claiming to havejurisdiction over such Lender; (iii) to any other party to this Agreementfor purposes directly related to this Agreement or any other Loan Document; (iv) inconnection with any suit or proceeding relating to this Agreement or any otherLoan Document; (v) subject to an agreement containing confidentialityundertakings substantially similar to those of this Section, to (A) anyassignee of or participant in, or any prospective assignee of or participantin, any of its rights or obligations under this Agreement or (B) anyactual or prospective counterparty (or its Related Parties) to any swap orderivative transaction relating to the Borrower or any Subsidiary and itsobligations; (vi) to the extent such Information (A) becomes publiclyavailable other than as a result of a breach by such Lender of this Agreement, (B) isgenerated by such Lender or becomes available to such Lender on anonconfidential basis from a source other than the Borrower or its Affiliatesor the Agent, or (C) was available to such Lender on a nonconfidentialbasis prior to its disclosure to such Lender by the Borrower or its Affiliatesor the Agent; or (vii) to the extent the Borrower shall have consented tosuch disclosure in writing.  As used inthis Section, “Information” shall mean the Confidential Memorandum andany other confidential materials, documents and information relating to theBorrower that the Borrower or any of its Affiliates may have furnished or madeavailable or may hereafter furnish or make available to the Agent or any Lenderin connection with this Agreement.

##  

### (b) Each Lender acknowledges that Information furnished to it pursuant to thisAgreement may include material non—public information concerning the Borrowerand its Affiliates or the Borrower’s securities, and confirms that it hasdeveloped compliance procedures regarding the use of material non-public informationand that it will handle such material non-public information in accordance withthose procedures and applicable law, including Federal and state securitieslaws.

###  

### (c) All information, including requests for waivers and amendments, furnished byany Borrower or the Agent pursuant to, or in the course of administering, thisAgreement will be syndicate-level information, which may contain materialnon-public information about the Borrower and its Affiliates or the Borrower’ssecurities.  Accordingly, each Lenderrepresents to the Borrower and the Agent that it has identified in itsAdministrative Questionnaire a credit contact who may receive information thatmay contain material non-public information in accordance with its complianceprocedures and applicable law, including Federal and state securities laws.

 

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### (d) Each Transferee shall be deemed, by accepting any assignment or participationhereunder, to have agreed to be bound by this Section.

###  

## SECTION 9.17.  Electronic Communications.  (a)  The Borrower hereby agrees that,unless otherwise requested by the Agent, it will provide to the Agent allinformation, documents and other materials that it is obligated to furnish tothe Agent pursuant to Section 5.04(a), (b), (c), (f), (g), (h), (i), (k) and(l) (the “Communications”) by transmitting the Communications in anelectronic/soft medium (provided such Communications contain any requiredsignatures) in a format reasonably acceptable to the Agent to oploanswebadmin@citigroup.com(or such other e-mail address as shall be designated by the Agent from time totime); provided that any delay or failure to comply with therequirements of this Section 9.17(a) shall not constitute a Defaultor an Event of Default hereunder.

##  

### (b) Each party hereto agrees that the Agent may make the Communications availableto the Lenders by posting the Communications on IntraLinks or another relevantwebsite, if any, to which each Lender and the Agent have access (whether acommercial, third-party website or whether sponsored by the Agent) (the “Platform”).  Nothing in this Section shall prejudicethe right of the Agent to make the Communications available to the Lenders inany other manner specified in the Loan Documents.

###  

### (c) Each Lender agrees that e-mail notice to it (at the address provided pursuantto the next sentence and deemed delivered as provided in the next paragraph)specifying that Communications have been posted to the Platform shallconstitute effective delivery of such Communications to such Lender forpurposes of the Loan Documents.  EachLender agrees (i) to notify the Agent in writing (including by electroniccommunication) from time to time to ensure that the Agent has on record aneffective e-mail address for such Lender to which the foregoing notice may besent by electronic transmission and (ii) that the foregoing notice may besent to such e-mail address.

###  

### (d) Each party hereto agrees that any electronic communication referred to in this Section shallbe deemed delivered upon the posting of a record of such communication(properly addressed to such party at the e-mail address provided to the Agent)as “sent” in the e-mail system of the sending party or, in the case of any suchcommunication to the Agent or any Lender, upon the posting of a record of suchcommunication as “received” in the e-mail system of the Agent or any Lender; provided that if suchcommunication is not so received by the Agent or a Lender during the normalbusiness hours of the Agent or applicable Lender, such communication shall bedeemed delivered at the opening of business on the next Business Day for theAgent or applicable Lender.

###  

### (e) Each party hereto acknowledges that (i) the distribution of materialthrough an electronic medium is not necessarily secure and that there areconfidentiality and other risks associated with such distribution, (ii) theCommunications and the Platform are provided “as is” and “as available,” (iii) noneof 

 

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### the Agent, its Affiliates orany of its Related Parties (collectively, the “Citigroup Parties”)warrants the adequacy of the Platform or the accuracy or completeness of theCommunications or the Platform, and each Citigroup Party expressly disclaimsliability for errors or omissions in any Communications or the Platform, and (iv) nowarranty of any kind, express, implied or statutory, including any warranty ofmerchantability, fitness for a particular purpose, non-infringement of thirdparty rights or freedom from viruses or other code defects, is made by anyCitigroup Party in connection with any Communications or the Platform.

###  

## SECTION 9.18.  Patriot Act.  Each Lender that is subject to Section 326of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,2001)) (the “Patriot Act”) hereby notifies the Borrower that pursuant tothe requirements of the Patriot Act it is required to obtain, verify and recordinformation that identifies the Borrower, which information includes the nameand address of the Borrower and other information that will allow such Lenderto identify the Borrower in accordance with the Patriot Act.

##  

## SECTION 9.19.  No Fiduciary Relationship.  The Borrower, on behalf of itself and theSubsidiaries, agrees that in connection with all aspects of the Transactionsand any communications in connection therewith, the Borrower, the Subsidiariesand their Affiliates, on the one hand, and the Agent, the Lenders and theirAffiliates, on the other hand, will have a business relationship that does notcreate, by implication or otherwise, any fiduciary duty on the part of theAgent, any Lender or any of their Affiliates, and no such duty will be deemedto have arisen in connection with any such transactions or communications.

##  

## SECTION 9.20.  Release of Liens and Guarantees.  A Subsidiary Loan Party shall automaticallybe released from its obligations under the Loan Documents, and all securityinterests created by the Security Documents in Collateral owned by suchSubsidiary Loan Party shall be automatically released, upon the consummation ofany transaction permitted by this Agreement as a result of which suchSubsidiary Loan Party ceases to be a Subsidiary.  Upon any sale or other transfer by any LoanParty (other than to the Borrower or any Subsidiary) of any Collateral in atransaction permitted under this Agreement, or upon the effectiveness of anywritten consent to the release of the security interest created under anySecurity Document in any Collateral pursuant to Section 9.08A, thesecurity interests in such Collateral created by the Security Documents shallbe automatically released.  In connectionwith any termination or release pursuant to this Section, the Agent shallexecute and deliver to any Loan Party, at such Loan Party’s expense, alldocuments that such Loan Party shall reasonably request to evidence suchtermination or release.  Any executionand delivery of documents pursuant to this Section shall be withoutrecourse to or warranty by the Agent.

 

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